Porter v. Garrissino

By the Court: The “matter in litigation” was, at the time of the intervention, the alleged right to the possession on the part of the plaintiff, and the ouster of plaintiff by the defendant.

[561]The intervention contains no averment that the intervenor is in any way connected with the right to the possession asserted either by plaintiff or defendant, but, on the contrary, alleges that he has title paramount to both, and that he has been in the actual possession for more than five years. The intervenor, therefore, had no interest in the matter in litigation.

If the intervenor is the owner, and in possession of a portion óf the premises sued for, he cannot be disturbed in his possession under any process which may be issued on a judgment in favor of plaintiff against the defendant.

If he has no connection with the defendant, it is plain that a judgment against defendant cannot be resorted to to remove him. If defendant held for him, his proper course would have been to apply for leave to defend in the name of defendant.

Nor can plaintiff claim that the intervenor shall be bound by a judgment which may have been taken against the defendant on the ground that he actually appeared and assisted to defend on behalf of defendant, since the pleading on which he alone has claimed his right to appear has been set aside and disregarded by this Court on the application of plaintiff himself.

Judgment and order, so far as the same was rendered in favor of the intervenor, reversed, and the court below directed to strike from the files the paper writing styled in the transcript “ Answer of John McDermott, intervenor,” the same being the intervention of said McDermott, and wholly to disregard said intervention, and to render judgment irrespective of said intervention.

Mr. Chief Justice Wallace, being disqualified, did not sit in this cause.