28

states. The codes generally, however, provide that the time to ansv er may be enlarged or extended in the discretion of the court or judge.2 In New York, the defendant must answer within the statutory time, or such further time as he may obtain by order.2 In California, an answer filed without leave of court, after the time for answering has expired, but before default has been entered, is at most an irregularity. The court, in its discretion, may strike it out or retain it, or permit another to be filed, but the plaintiff cannot as of right have such answer stricken out. For these purposes the defendant is not in default until his default has been actually entered.30 The only purpose of a default is to limit the time during which the defendant may file his answer, and that time never extends beyond a trial and judgment.31 If the defendant demurs only, and the demurrer is overruled, the court may allow him to answer, imposing terms in its discretion.32 If the demurrer is deemed frivolous, terms will be imposed before an answer is allowed. Such a rule is required to prevent the demurrer from becoming a means of delay only; and if the court does not fix the time within which an answer in such case may be filed, the defendant should answer within the same time as in the case of service of a copy of the original complaint.33 When a demurrer is interposed and overruled, the question of time to answer and terms are chiefly regulated by the rules and discretion of the court in which the action is pending.34

35

When the defendant is allowed time to answer until the plaintiff elects on which count of his complaint he will go to trial, the plaintiff should serve a copy of the complaint with the notice of his election. And if an answer has been already filed, it may be allowed by order of the court to stand as an answer to such amended complaint, and it shall be treated as if filed when the order is made.36 So, if the defendant should fail to answer in the time specified in the summons, it is not an unsound exercise of discretion to refuse him leave to file an answer which does not

27 Cal. Code Civ. Proc., § 407; N. Y. Code Civ. Proc., § 448.

28 Cal. Code Civ. Proc., § 473; Or. B. & C. Codes, § 103.

29 N. Y. Code Civ. Proc., §§ 520, 781, 782.

30 Cal. Code Civ. Proc., § 473; Bowers v. Dickerson, 18 Cal. 421; Acock v. Halsey, 90 Cal. 220, 27 Pac. 193. 31 Drake v. Duvenick, 45 Cal. 463. P. P. F. Vol. I-27

82 Cal. Code Civ. Proc., § 472. See, also, Maumus v. Hamblon, 38 Cal. 539. 33 People v. Rains, 23 Cal. 128.

34 Cal. Code Civ. Proc., §§ 472, 473, 1054; Thornton v. Borland, 12 Cal. 438; Smith v. Yreka etc. Co., 14 Cal. 202; Lord v. Hopkins, 30 Cal. 78.

35 Willson v. Cleaveland, 30 Cal.

192.

36 Mulford v. Estudillo, 32 Cal. 131.

show a meritorious defense.37 Where an action was brought against a partnership, and one member of the firm, although not served with process, entered into a stipulation which was filed in the case, giving him time to plead and file motion for a change of venue, and to dismiss the complaint without any limitation on his appearance, an order made two years later, giving the defendants forty-eight hours to file an answer, was held not to be unreasonable merely because the partner was not in the state, since he had entered a general appearance and, from the number of motions. filed by him, was evidently sufficiently familiar with the case to enable him to answer.38

A stipulation extending the time within which to answer to and including a specific day, which falls on Sunday, entitles the defendant to answer it any time during the succeeding Monday.39 The fact that an answer is not filed until after the expiration of the time for answering does not render the filing a nullity; and where the answer seeks affirmative relief, a judgment of dismissal of the action by the plaintiff is void. In Oregon, where an answer is not filed within the time limited, the proper practice is to apply to the trial court for a default or judgment for want of an answer.11 The Washington statute 2 fixes the time for answer in response to a summons at twenty days in all cases.*

43

An order of court extending the time of the moving party to plead only one day after the decision of the motion made more. than five months after the service of summons on him, was held to be an attempt to extend the time to plead beyond thirty days. without the consent of the plaintiff, and was void, as being beyond. the jurisdiction of the court, and could not preclude the entry of the default of the defendant pending the time named in such void order.44

The courts will take judicial notice of the territorial extent of the local divisions of the country into states, counties, cities, etc., for the purpose of fixing the time within which an answer must be filed.45

37 Thornton v. Borland, 12 Cal. 439; Hallowell v. Page, 24 Mo. 590. 38 Adamson v. Bergen, 15 Colo. App. 396, 62 Pac. 629.

29 Blackwood v. Cutting Packing Co., 71 Cal. 461, 12 Pac. 493.

40 Acock v. Halsey, 90 Cal. 215, 27 Pac. 193. See, also, Truett v. Onderdonk, 120 Cal. 586, 53 Pac. 26.

41 Gaines v. Cyrus, 23 Or. 403, 31 Pac. 833.

42 Laws 1893, p. 407.

43 McMaster v. Advance Thresher Co., 10 Wash. 147, 38 Pac. 760.

44 Kennedy v. Mulligan, 136 Cal. 556, 69 Pac. 291.

45 People v. Smith, 1 Cal. 9.

CHAPTER XXIX.

INTERVENTION, INTERPLEADER, ETC.

§ 681. Intervention.-A plea in intervention should contain all the necessary allegations within itself; and the intervener should not be allowed to refer to and make a part of his pleading portions of the original complaint. At any time before trial, any person who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both, may intervene in an action or proceeding. 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, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court, and served upon the parties to the action or proceeding who have not appeared, and upon the attorneys of the parties who have appeared, who may answer or demur to it as if it were an original complaint. The right to intervene under this section is not limited to any particular kind or class of actions, but is general.3 And the fact that the intervener might protect his interest in some other way is immaterial. The right is purely statutory, and the statute prescribes the mode of exercising it. The right to intervene may be exercised at any time before trial of the action, but an intervention cannot be allowed after final judgment." Good practice requires the petition to be filed before the trial is entered upon. But the petition is in time, although not filed

8

1 Blackwell v. Latch, 13 Okla. 169, 73 Pac. 933.

2 Cal. Code Civ. Proc., § 387; Alaska Codes, pt. 4, ch. 3, § 41; Ariz. Civ. Code, pars. 1278, 1279; Colo. (Mills' Ann. Code) § 22; Idaho Rev. Codes, §§ 4111-4115; Mont. Rev. Codes, §§ 6496-6500; Nev. Comp. Laws, 3694; N. Dak. Code Civ. Proc., 5239; Or. B. & C. Codes, S$ 41, 42; S. Dak. Code Civ. Proc., § 96; Utah Rev. Stats., § 2925; Wash. Bal. Codes, §§ 4846, 4817.

6

8 Robinson v. Crescent City Transp. Co., 93 Cal. 316, 28 Pac. 950.

Coffey v. Greenfield, 55 Cal. 382. Chase v. Evoy, 58 Cal. 348, 355. 6 Coburn v. Smart, 53 Cal. 742. 7 Owens v. Colgan, 97 Cal. 454, 32 Pac. 519; Baines v. West Coast Lumber Co., 104 Cal. 1, 37 Pac. 767; Leonis v. Biscailuz, 101 Cal. 330, 35 Pac. 875.

8 Rockwell v. Coffey, 20 Colo. 397, 38 Pac. 376.

until after a motion in the principal action for a default against the defendant. The order allowing an intervention may be made ex parte.10

§ 682. Petition. Whatever its form, it seems that under the statute the plea of an intervener is now called a complaint. It cannot be filed without leave of the court, and prudence would suggest that it should appear that leave was obtained. If the petition is insufficient as to facts, the objection can be taken at any time. One intervening in opposition to the application of a receiver in an action to make a certain expenditure, does not become a party to the action, or to any proceeding collateral thereto, other than that in which he intervenes.12 The purpose of a petition in intervention is to show that the intervener has such interest as to entitle him to so intervene, and the question of whether a new issue of fact is presented is not a test whether an issue different from that between the original parties is raised.13

14

§ 683. Appeal. The right of an intervener to take an appeal is immediate upon the sustaining of an objection, by demurrer, to his right to intervene. If pleadings in intervention are filed in the court below without objection, and the parties go to trial without objecting, they cannot afterwards on appeal raise the objection that it was irregular and erroneous to permit an intervention.15

§ 684. Assignees. An assignee pendente lite of part of the subject-matter of the controversy may be brought in.16 An assignee in bankruptcy or insolvency, but only on his own application," and an assignee applying to be made defendant in an action for conversion of property, must show some right thereto.18 An

13 Cache etc. Ditch Co. v. Hawley, 43 Colo. 32, 95 Pac. 317.

14 Stich v. Dickinson, Goldner Intervener, 38 Cal. 608. See Henry v. Travelers' Ins. Co., 16 Colo. 179, 26 Pac. 318.

15 Mckenty v. Gladwin, 10 Cal. 227; Smith v. Penny, 44 Cal. 161. 16 McGown v. Leavenworth, 2 E. D. Smith, 24.

17 Cleveland v. Boerum, 3 Abb. Pr. 294.

18 Gunther v. Greenfield, 8 Abb. Pr. (N. S.) 191.

assignee for the benefit of creditors, in the absence of peculiar facts, has no such interest in the "matter in litigation" as entitles him to intervene to defend a purely personal action against his assignor.1 If the owner of a claim assigns it absolutely, retaining, however, an interest in it, he may intervene to protect his interest in an action brought by the assignee to collect the same, and if he does not intervene, he is bound by the judgment.20 Where parties succeed to the interest of the defendant in the premises, after the commencement of the action, and before answer filed, they may be allowed to defend.21

§ 685. Attachment suits.--In an attachment suit, judgment creditors of defendant may intervene to set aside the attachment, because void as to them.2 22 In an action to recover money on which an attachment has been issued and levied upon property of the defendant, a subsequent attaching creditor may intervene at any time before the entry of judgment, for the purpose of contesting the validity of the first attachment. And the allegations in the pleading, on the part of the intervener, traversing the complaint, have the same effect as denials in the answer, and require affirmative proof by the plaintiff of his cause of action, in default of which the intervener will have judgment in his favor.23 Subsequent attaching creditors may intervene in a suit of the prior attaching creditor and the common debtor, when they allege that there is nothing due to said first creditor, and that the object is to hinder, delay, and defraud other creditors.2 The interveners become defendants, and as they allege that the plaintiff is not entitled to recover, it amounts to a denial of the facts set forth in the complaint, and consequently the onus probandi is on the plaintiff; and if he fails to prove his case, even though the real defendants have made default, judgment will be given in favor of the interveners against him, and in his favor against the real defendants.25 Where a subsequent attaching creditor has his attachment levied on the property previously levied on by a prior

19 McClurg v. State Bindery Co., 3 S. Dak. 362, 44 Am. St. Rep. 799, 53 N. W. 428. See Meyer v. Black, 4 N. Mex. 190, 16 Pac. 620.

20 Gradwohl v. Harris, 29 Cal. 150. 21 McFadden v. Wallace, 38 Cal. 51. 22 Davis v. Eppinger, 18 Cal. 378, 79 Am. Dec. 184. See, also, Kimball v. Richardson-Kimball Co., 111 Cal.

386, 43 Pac. 1111. Hawes v. Clement, 64 Wis. 152, 25 N. W. 21; Tim v. Smith, 93 N. Y. 87; Goodbar v. City Nat. Bank, 78 Tex. 461, 14 S. W. 851.

23 Speyer v. Ihmels, 21 Cal. 280, 81 Am. Dec. 157.

24 Id.
25 Id.