Summary
In Leonis v. Biscailuz, 101 Cal. 330, the only question was whether a person could become a formal intervenor in this court under section 387 of the Code of Civil Procedure, and it was held that that section could be invoked only, as it expressly provides, "before the trial."
Summary of this case from Trumpler v. TrumplerOpinion
Department Two
Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.
COUNSEL:
Reymert & Orfila, and Smith, Winder & Smith, for Appellant.
R. Dunnigan, J. R. Dupuy, and E. H. Bentley, for Respondent.
JUDGES: De Haven, J. McFarland, J., and Fitzgerald, J., concurred.
OPINION
DE HAVEN, Judge
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 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 court to investigate and pass upon the merits of an appeal, when the parties to the record have consented to an affirmance or reversal of the judgment, without such investigation and decision. Nor is it at all necessary that the party thus desiring to intervene as a judgment creditor should be permitted to obtrude herself into the case at this time in order to protect her rights. The cause is to be reversed, and when it is remanded to the superior court she will have the right, at any time before judgment in the action, to present her petition for intervention as provided in section 387 of the Code of Civil Procedure, and have the same determined in accordance with what may then appear to be her rights in the premises; but, if it were otherwise, and final judgment was to be rendered in this court or in the superior court against the respondent herein upon his confession or stipulation such judgment, if fraudulently confessed by him for the purpose of preventing the application of the property in controversy to the satisfaction of the claim of the judgment creditor, and the appellant herein should participate in such fraudulent purpose, the judgment thus given would not conclude the rights of such creditor, although her rights were acquired by the levy upon such property during the pendency of this litigation. It is to "fair and bona fide judgments, [35 P. 876] and not to fraudulent ones, that the right of their enforcement against purchasers pendente lite is given. For no obligation, either legal or moral, withholds one from setting up his vendor's title as against him who has fraudulently contrived with his vendor to weaken or destroy it after he has conveyed the property to him. No principle of policy or convenience requires that such judgment should conclude his rights." (Haywood v. Sledge, 3 Dev. 338.)
It follows from what has been said that the motion for leave to intervene, and to file a brief herein, must be denied, and the judgment and order appealed from will be reversed in accordance with the stipulation.
Judgment and order reversed.