Rossi v. Superior Court

Harrison, J. Application for a writ of prohibition. One Gr. Grianelli commenced an action in the justice’s court against D. J. Hoult, to recover the sum of one hundred and twenty-five dollars, upon a claim for labor performed for the defendant by one Kass, and by him assigned to the plaintiff. Hoult answered the complaint, denying all its allegations.' Before the trial of the action the petitioner herein filed a complaint in intervention in the justice’s court, in which he denied all the allegations in the complaint, and alleged that in another action, brought by him in the justice’s court against Kass, he had attached the indebtedness of Hoult to Kass, and asked judgment that plaintiff take nothing by the action, but that judgment be rendered in his favor for such sum as might be found due from Hoult to Kass. A demurrer by the plaintiff to this complaint was over[373]ruled by the justice, and before the day fixed for the trial the justice entered the defaults of the plaintiff and defendant for failure to answer in intervention. The court denied a motion by the intervenor for judgment upon this default, and, upon the trial of the issues, witnesses were examined and briefs filed on behalf of the intervenor and the plaintiff, upon which the court found that the sum of one hundred and five dollars was owing from Hoult to Kass at the time of the garnishment, and rendered judgment in favor of the petitioner herein against Hoult for this amount, and in favor of Hoult and against the plaintiff for his costs. The plaintiff thereupon appealed to the superior court from this judgment, and from the whole thereof, on questions of both law and fact, serving his notice of appeal upon both the defendant and the intervenor. The superior court overruled the plaintiff’s demurrer to the complaint in intervention, and plaintiff thereupon, under leave of the court, filed an answer thereto, in which he denied its' several allegations. The court having set the case for trial, the present application has been made for a writ of prohibition, restraining it from all further proceedings in the action, so far as it relates to the proceedings had by reason of the intervention of the petitioner.

Counsel on both sides have assumed the right of a justice’s court to permit a complaint in intervention to be filed therein, and our conclusion herein has been reached without determining whether such right exists. {See, however, Code Civ. Proc., sec. 925.)

“An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant.” (Code Civ. Proc., sec. 387.) In the present case the intervenor denied all the allegations in the complaint, and thus “united with the defendant in resisting the claim of the plaintiff,” and