Speyer v. Ihmels & Co.
Before: Norton
Synopsis
la an action to recover money in which an attachment has been issued and levied upon property of the defendant, a subsequent attaching creditor may intervene at any time before the entry of judgment for the purpose of contesting the validity of the first attachment.
Davis v. Eppinger (18 Cal. 378) affirmed On this point.
Where a subsequent attaching creditor intervenes in an action for the purpose of setting aside an attachment issued therein, on the ground that there is no debt due from the defendant to the plaintiff, the allegations in the pleading on the part of the intervener traversing the complaint, have the same effect as denials in an answer and require affirmative proof by the plaintiff of his cause of action, in default of which the intervener will have judgment in his favor.
A judgment will not be reversed because of an error which affects the rights of parties who have not appealed, and not those of the appellants.
Action commenced by attachment to recover an alleged indebtedness, and defendants made default; before the entry of judgment, certain subsequent attaching creditors intervened and contested the validity of the plaintiff’s attachment, on the ground that no debt was really due from plaintiff to defendant. On the issue thus raised the Court found in favor of the intervenors, and thereupon entered an order setting aside the attachment of plaintiff: Held, that the order was erroneous in entirely setting aside the plaintiff’s attachment, and must be modified so as merely to postpone the plaintiff’s lien to that of the intervenors.
Where the merits of the case were not investigated in the lower Court by reason of an uncertainty as to the proper mode of proceeding under the anomalous provisions of the Practice Act relating to interventions, the Supreme Court awarded a new trial, although the decision of the Court below upon the main question involved was approved, and the only error disclosed might have been cured by a direction to modify the judgment.
Opinion — Norton
Norton, J. delivered the opinion of the Court Court Field, C. J. concurring.
[286]This is a case arising under the provisions of the Civil Practice Act relative to interventions.
'On the tenth of January, 1861, the plaintiff commenced his action, and caused an attachment to be levied upon the property of Ihmels & Co. On the same day Eggers & Co. commenced an action against the same defendants, and caused an attachment to be levied upon the same property, but subsequent to the plaintiff’s levy, and in due course obtained judgment. On the day previous E. L. Goldstein had commenced an action against the same defendants, and caused an attachment to be levied upon the same property, but also subsequent to the plaintiff’s levy. Before a default was entered against the defendants in this action, E. L. Goldstein and Eggers & Co. severally filed interventions setting forth these facts, and also averring that the property attached was only sufficient to satisfy the plaintiff’s claim, and also charging that the plaintiff’s demand was not due at the time he commenced his action, and also that he had no valid demand against the defendants, and that his action was prosecuted for the purpose of hindering and defrauding creditors of the defendants. A general demurrer was interposed to these complaints of intervention; that is, that the facts set forth do not constitute a cause of intervention. The demurrer was overruled, and then the plaintiff answered the interventions, and upon the action coming on for trial, after the intervenors had made proof of their attachment proceedings, and the plaintiff had shown the default of the original defendants, each party moved the Court for judgment in his favor, without giving further evidence, and thereupon the Court found in favor of the plaintiff against the defendants and in favor of the intervenors against the plaintiff, and adjudged that the plaintiff recover the amount of his demand against the defendants, and that his attachments be set aside, and that the Sheriff pay over the money in his hands to the intervenors pro rata. From this judgment the plaintiff appeals. The two main points presented are: 1st. Whether the facts show a case for a proceeding by intervention; and 2d, whether the onus probandi was on the plaintiff to prove his cause of action as between him and the intervenors, or on the intervenors to prove their cause of action against the plaintiff.
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