Leonis v. Biscailuz
Before: Haven
Synopsis
Appeal—Stipulation fob Reversal—Intervention.—Where the parties to an appeal stipulate that the errors assigned by the appellant are well taken, and that the judgment may be reversed and the cause remanded for a new trial, a third party who claims to have levied upon the interest of the respondent in the lands in controversy will not be permitted to intervene in the supreme court and to file a brief upon the merits of the appeal, and the judgment and order appealed from may be reversed in accordance with the stipulation.
Id.—Fraudulent Judgment—Rights of Judgment Creditor—Levy of Execution Pendente Lite.—A final judgment, if fraudulently confessed by the defendant for the purpose of preventing the application of the property in controversy, in satisfaction of a claim of a judgment creditor of the defendant, the plaintiff participating in such fraudulent purpose, would not conclude the rights of such creditor acquired by levy of execution upon the property in controversy, as the property of the defendant, during the pendency of litigation.
De Haven, J. The parties to this action have filed a stipulation herein to the effect “that the errors assigned by the appellant in the record in this case are well taken,” and that the judgment and order appealed from shall be reversed, and the cause remanded to the [331]superior court for a new trial, and have moved for a judgment in accordance with this stipulation. The motion is opposed by one Victoria J. de Yorba, who has filed an affidavit to the effect that since the rendition of the judgment appealed from she has recovered a money judgment against the respondent here, and has caused an execution thereon to be levied upon the land in controversy in this action; “ that she is informed and believes that upon the technical merits of this appeal the respondent, Biscailuz, will be entitled to have his said judgment against Leonis confirmed, but the affiant avers that she is informed and verily believes that since her said levy on the said interest of Biscailuz in said Leonis’ lands, an arrangement has been arrived at between the appellant, Leonis, and respondent Biscailuz that by some form of consent judgment, or by some device, the particulars of which cannot be ascertained by affiant, a judgment of this court shall be suffered by said Biscailuz to be taken against him as respondent in favor of the appellant, Leonis, the effect of which arrangement will be to divest the said Biscailuz of title to the lands and property levied on by affiant, and thereby prevent the affiant from the collection of her said judgment from the said Biscailuz.” It is also stated in the affidavit that the respondent, Biscailuz, is insolvent, and has no other property than that in controversy here out of which to satisfy the judgment of the affiant, and she asks to be allowed to intervene in the action in this court, and to file briefs on the technical merits, and that the court dispose of the cause on its merits, and without reference to the stipulation of the parties to the record.
The application is certainly a novel one. Under section 387 of the Code of Civil Procedure one who has an interest in the matter in litigation may be permitted to intervene before the trial of an action; but there is no authority for such intervention after judgment, and while the cause is pending in this court on appeal; nor has a stranger to the record any right to call upon this [332]
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