fornia and the Iowa codes, and the opinion of Mr. Justice Dillon is in complete harmony with it. The cases cited above all fall within this doctrine. In each the intervenors had a direct interest, either in prosecuting the action and obtaining the benefit of the recovery, or in defending the action and entirely defeating the recovery. If the intervenor claims to be the only one entitled to the relief, if he asserts that the ultimate cause of action is vested in him and not in the original plaintiff, then his interest is adverse to both of the parties. The doctrine may be expressed in the following manner: The intervenor's interest must be such, that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought; or if the action had first been brought against him as the defendant, he would have been able to defeat the recovery in part at least. His interest may be either legal or equitable. If equitable, it must be of such a character as would be the foundation for a recovery or for a defence, as the case might be, in an independent action in which he was an original party. As the new system permits legal and equitable causes of action or defences to be united by those who are made the parties to an ordinary suit, for the same reason either or both may be relied upon by an intervenor. In short, the same rules govern his rights which govern those who originally sue or defend. The proceeding by intervention is not an anomalous one, differing from other judicial controversies, after it has been once commenced. It is, in fact, the grafting of one action upon another, and the trying of the combined issues at one trial, and the determining them by one judgment. In this aspect of the proceeding, it is both plain and reasonable that the intervenor should not be required to apply for permission to come in. He brings himself into court, and becomes a litigant party by filing and serving his petition, which is answered by the adversary parties plaintiff or defendant, or both in the same manner as though it was the pleading of a plaintiff: the issues are thus framed, -issues upon the plaintiff's petition and the intervenor's petition, and the trial of the whole is had at one hearing. If the intervenor fails on this trial, a judgment for costs is of course rendered against him; if he succeeds, a judg ment is given in his favor according to the facts and circumstances of the case.1 § 431. This is certainly a great innovation upon the procedure which has hitherto prevailed in courts of law and of equity. It is, however, a method based upon the very principles which lie at the foundation of the entire reformed American system. The only possible objection is the multiplication of issues to be decided in the one cause, and the confusion alleged to result therefrom. This objection is not real: it is the stock argument which was 1 These remarks apply in their full extent only to the Iowa system, since by the last revision of the California code an intervenor must obtain leave of the court to file his complaint. Where an intervention is adverse to both plaintiff and defendant, the issues raised by it must be tried and decided, whatever disposition may be made of the issues between the original parties. If the plaintiff is nonsuited on the trial, the intervention is not thereby dismissed, but its trial must go on until a decision in it is reached. Poehlman v. Kennedy, 48 Cal. 201. The following cases show the circumstances under which the doctrine has been applied by the courts of California. A third person, to whom the cause of action has been transferred pendente lite, or who is directly interested in the subject-matter, may intervene before or after the issue is joined. Brooks v. Hager, 5 Cal. 281, 282. In an action to foreclose a mortgage given on a homestead, the wife of the mortgagor may intervene. Sargent v. Wilson, 5 Cal. 504, 507; Moss v. Warner, 10 Cal. 296, 297. When the State was the plaintiff seeking to recover moneys belonging to it, a third person intervened, and set up a claim to the same money, growing out of the transaction which was the foundation of the suit; but it was held that the State could not be sued in any form, although it was conceded that the intervention would have been proper between private persons. People v. Talmage, 6 Cal. 256, 258. An intervention is proper by a person having a claim or lien upon the fund which is the subject of the action. County of Yuba v. Adams & Co., 7 Cal. 35. In an attachment suit, judgment creditors of the defendant may intervene, and object to the attachment, and have it set aside if void as against them. Davis v. Eppinger, 18 Cal. 378, 380; and see Dixey v. Pollock, 8 Cal. 570. And, in such a suit, a subsequent attaching creditor may intervene, and show that the first attachment was wrongly issued, because there was, in fact, no debt due from the defendant to the plaintiff therein, and may have its lien postponed to that of his own attachment. Speyer v. Ihmels, 21 Cal. 280, 287; Coghill v. Marks, 29 Cal. 673. In an action against a sheriff for wrongfully seizing the plaintiff's property on execution against another, the person who indemnified the sheriff may intervene, and make himself a party on the record, and defend in the place of the defendant,- the sheriff. Dutil v. Pacheco, 21 Cal. 438, 442, per Norton J. If an action is brought to foreclose a mortgage which is barred by the statute of limitations, a subsequent purchaser or incumbrancer of the land may intervene, and set up the statute as a defence. Coster v. Brown, 23 Cal. 142, 143. An action being brought by the assignee of a thing in action, the assignment of which was absolute on its face, the assignor intervened, alleged that he owned three-fourths of the debt, and prayed judgment in his own favor for that amount. The intervention was sustained, and the intervenor had judgment for three-fourths, and the plaintiff for onefourth. Gradwohl v. Harris, 29 Cal. 150, 154. When the court below has granted an application to intervene, although after the trial and decision, its act is a judicial one, and cannot be reviewed by mandamus. People v. Sexton, 37 Cal. 532, 534. constantly urged in favor of retaining the common-law system of special pleading, and was repudiated when the codes were adopted by the American States, and has been at last utterly repudiated in England. Complicated issues of fact are daily tried by juries, and complicated equities are easily adjusted by courts. The description which I have here given of the enlarged power of intervention admitted by the codes of California and of Iowa, may, by introducing its methods to the profession of other States, procure its general adoption wherever the new procedure is established. Courts and legislatures of the several States may well borrow the improvements which have been made in other commonwealths; and thus, by a comparison of methods, the common system may become perfected and unified. CHAPTER THIRD. THE AFFIRMATIVE SUBJECT-MATTER OF THE ACTION: THE FORMAL STATEMENT OF THE CAUSE OF ACTION BY THE PLAINTIFF. SECTION FIRST. THE STATUTORY PROVISIONS. § 432. I HERE collect all the provisions of the various codes which relate in a general manner to the plaintiff's complaint or petition, and which contain the rules applicable to the theory of pleading as a whole: those which prescribe the mode of alleging certain particular classes of facts, or regulate the joinder of causes of action, or define the nature and uses of the reply, will be quoted in subsequent portions of the chapter, in immediate connection with the several subjects to which they refer. The important clauses which announce the fundamental and essential principles and doctrines of the reformed system in regard to all pleadings, and which determine the form and substance of the one by which the plaintiff sets forth the grounds of his claim for judicial relief, are nearly the same in the different State codes. With the few variations in the language, which will be pointed out, there is no substantial difference; and the system of pleading, as found in the statute, is absolutely the same wherever the reform prevails. The following are all the provisions which it is necessary to quote in order to exhibit the simple and natural methods introduced by the new procedure. § 433. "All the forms [the rules, Ohio, Nebraska, Kansas] of pleading heretofore existing [in actions at law, Oregon] are abolished; and hereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this act." 1 "The first 1 New York, § 140; Wisconsin, ch. 125, § 1; Ohio, § 83; Missouri, art. 5, § 1; Minnesota, § 76; Kansas, § 85; Nebraska, § 90; Indiana, § 47; Kentucky, § 116; California, § 421; Florida, § 91; pleading on the part of the plaintiff is the complaint [petition]."1 "The only pleadings allowed are, 1, the petition [complaint] by the plaintiff; 2, the answer or demurrer by the defendant; 3, the demurrer or reply by the plaintiff; 4, the demurrer to the reply by the defendant.” 2 "The complaint [petition] shall contain, 1, the title of the cause specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, — plaintiff and defendant; 2, a plain and concise statement of the facts constituting a cause of action without unnecessary repetition; 3, a demand of the relief to which the plaintiff supposes himself entitled. If a recovery of money be demanded, the amount thereof shall be stated." 3 "The defendant may de the provisions of this act" is inserted between "existing" and "are abolished." The corresponding provision of the Iowa code is more detailed: "§ 2644. All technical forms of action or pleading, all common counts and general issues, and all fictions, are abolished; and hereafter the forms of pleading in civil actions, and the rules by which their sufficiency is to be determined, are those prescribed in this code." 1 New York, § 141; Wisconsin, ch. 125, § 2; Missouri, art. 5, § 3; Minnesota, § 78; Indiana, § 49; California, § 425; Florida, § 92; Oregon, § 64; Dacotah, § 94; North Carolina, § 92; South Carolina, § 164. 2 Ohio, § 84; Minnesota, § 77; Kansas, § 86; Nebraska, § 91; Iowa, § 2645; Indiana, § 48; California, § 422; Oregon, § 63; Dacotah, § 93; Kentucky, § 117. In Ohio, the following is added: "Crosspetition. Any defendant who is properly made a defendant may claim in his answer relief touching the matters in question in the petition, against the plaintiff or against other defendants in the same action." So in Kentucky the defendant may make his answer a cross-petition against a codefendant or other person. 3 New York, § 142 (compl't.); Wisconsin, ch. 125, § 3 (compl't.); Ohio, § 85 (pet'n.); Kansas, § 87 (pet'n.); Nebraska, § 92 (pet'n.); Missouri, art 5, § 3 (pet'n.); Minnesota, § 79 (compl't.); Indiana, § 49 (compl't.); California, § 426 (compl't.); Florida, § 93 (compl't.); Oregon, § 65 (compl't.); Dacotah, § 95 (com pl't.); Kentucky, § 118 (pet'n.); North Carolina, § 93 (compl't.); South Carolina, § 165 (compl't.). In Ohio, Kansas, and Nebraska, the second subdivision reads, "A statement of the facts constituting, &c., in ordinary and concise language;" in Indiana it is the same, with the following addition, "without repetition and in such a manner as to enable a person of common understanding to know what is intended." The corresponding section of the Iowa code is special: "§ 2646. The petition must contain, 1, the name of the court and county in which the action is brought; 2, the names of the parties to the action, plaintiff and defendant, followed by the word 'petition' if the proceedings are ordinary, and by the words 'petition in equity' if the proceedings are equitable; 3, a statement of the facts constituting the plaintiff's cause of action; 4, a demand of the relief to which the plaintiff considers himself entitled, and, if a recovery of money be demanded, the amount thereof shall be stated; 5, when the petition contains more than one cause of action, each must be stated wholly in a division or count by itself, and must be sufficient in itself; but one prayer for relief may include a sum based on all the counts looking to a money remedy; 6, in a petition by equitable proceedings, each division shall also be separated into paragraphs, numbered as such, for convenient reference; and each paragraph shall contain, as near as may be convenient, a complete and distinct statement.” |