Dennis v. Kolm

COOPER, C.

This action was brought to recover for goods, wares, and merchandise, alleged to have been sold to the defendants as copartners under the -firm name of “Kolm Bros.” One Perkins had in his hands about eight hundred and seventy dollars, which plaintiff claimed to be the money of H. Kolm, who was alleged to be one of the partners.

Plaintiff had the eight hundred and seventy dollars attached in this action as the property of H. Kolm. Bertha Kolm, a sister, filed a complaint in intervention in which she denied that the money so attached was the property of H. Kolm or of “Kolm Bros.,” and alleged that the same was her property, and asked that she be adjudged to be the owner thereof. A demurrer was interposed by plaintiff to the complaint in intervention, overruled, and plaintiff filed an answer to said complaint. The respondent H. Kolm filed an answer to the complaint of plaintiff, in which, among other things, he denied that he ever was, at any time, a member of the firm of “Kolm Bros,” or that he was in any way indebted to the plaintiff. The case was tried before a jury, and verdicts rendered for the respondent H. Kolm and the. intervenor Bertha Kolm. TJpon these verdicts judgment was entered. This appeal is from the judgment and an order denying plaintiff’s motion for a new trial. .

It is claimed that the court erred in overruling the demurrer to the complaint in intervention, for the reason that the said complaint does not state facts showing that the intervenor has any interest in the matter in controversy, or that the decision would in any way affect her rights It is provided in the Code of Civil Procedure, section 387: “Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the par

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ties, or an interest against both.” In this case the intervener . claimed the money in the hands of Perkins, as the proceeds of a note and mortgage that had been assigned to her by respondent H. Kolm. 'She alleged that “Kolm Bros.” were at no time the owners of said note or mortgage or of the money in the hands of Perkins, but that she was the owner of the same.

If she could show that H. Kolm was not one of the copartners of the firm of “Kolm Bros.,” then he was not indebted to plaintiff. If plaintiff was not a creditor of H. Kolm at any time, then he could not attack the transfer of the note and mortgage made by H. Kolm to the intervener. We think the intervenor had such interest as would entitle her to intervene under the statute. It was said by this court in