attaching creditor, he is entitled to intervene in the action between the first attaching creditor and the defendant, if the first attachment was fraudulently procured, and the common debtor has not sufficient property to pay both claims.20 § 686. Dismissal.-Where plaintiffs brought suit to foreclose a lien, and other parties intervened as lien claimants, and after an appearance by the defendants plaintiff filed a dismissal of the suit, it was held that the dismissal could not affect the rights of the interveners, and they had a right to an adjudication as between themselves and the defendants. Nonsuit of plaintiff is not a dismissal as to an intervener whose intervention defendant has answered. A motion to dismiss an intervention should point out the precise ground on which it is made.28 27 § 687. Ejectment. In ejectment, a person who is in no way connected with the right of possession asserted by the plaintiff or the defendant, but, on the contrary, alleges title in himself paramount to both, cannot intervene.29 If, however, plaintiff and the intervener agree upon the facts, and stipulate that the claim of the intervener shall be determined upon the legal effect of the stipulated facts, plaintiff cannot afterwards object that the case is not a proper one for intervention.30 § 688. Foreclosure.-A simple contract creditor of a common debtor cannot intervene in a foreclosure suit. But judgment creditors, being, as such, subsequent incumbrancers, may intervene; and a court may order them to be made parties, probably by an amendment of the complaint as the better course, or on petition of intervention.31 In a suit on a note and mortgage, where creditors of the defendant intervened, alleging the note and mortgage to be fraudulent as against them, the interveners cannot prevent a judgment for plaintiff against defendant. The most they can claim is protection against the enforcement of the judgment to 26 Coghill v. Marks, 29 Cal. 673. But see Dixey v. Pollock, 8 Cal. 570. 27 Elliott v. Ivers, 6 Nev. 287. 28 Poehlmann v. Kennedy, 48 Cal. 201. 29 Porter v. Garrissino, 51 Cal. 559. See Rosecrans v. Ellsworth, 52 Cal. 509. As to intervention by landlord in ejectment against tenant in possession, see Reay v. Butler, 69 Cal. 572, 11 Pac. 463. 30 Donner v. Palmer, 51 Cal. 629. 31 Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569. their prejudice. 32 In an action to foreclose a mortgage upon property claimed as a homestead, the wife should be allowed to intervene.33 34 § 689. Interest of parties.-The interest which entitles a person to intervene in a suit between other parties must be in the matter in litigation, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment. It must be that created by a claim to the demand, or some part thereof, in suit, or a claim to or lien upon the property, or some part thereof, which is the subject of litigation. To authorize an intervention, therefore, the interest must be that created by a claim to the demand, or some part thereof, in suit or a claim to or lien upon the property, or some part thereof, which is the subject of litigation.35 In an action by the holder of a chattel mortgage against the mortgagor for the possession of the mortgaged property, a mere judgment creditor, without lien by levy of execution or attachment, is not entitled to intervene for the purpose of showing the mortgage paid or fraudulent. Intervention proceedings are to be liberally construed, with the view to assist parties in obtaining justice. And in determining whether a party is entitled to intervene, the averments of the petition, so far as they are well pleaded and not denied, are to be taken as true.3 So it is within the discretion of the trial court to allow an intervener to amend his complaint at the trial to conform to the proofs, and it is not error to allow such amendment.3 38 36 37 § 690. Mechanic's lien.-In a suit to enforce a mechanic's lien on a ditch, a mortgagee of the ditch subsequent to the lien has no 32 Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569. Compare Henry v. Traveler's Ins. Co., 16 Colo. 179, 26 Pac. 318. 33 Sargent v. Wilson, 5 Cal. 504; Marks v. Marsh, 9 Cal. 96; Moss v. Warner, 10 Cal. 296; Mabury v. Ruiz, 58 Cal. 11. 34 Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569; Harlan v. Eureka M. Co., 10 Nev. 92; Henry v. Traveler's Ins. Co., 16 Colo. 179, 26 Pac. 318. See Wood v. Denver City Water Works Co., 20 Colo. 253, 266, absolute right of intervention. And when the suit had been pending some time, and the application to intervene was made just as plaintiff was taking judgment, the application was properly refused. The filing of an intervention in an action to foreclose a mechanic's lien within the prescribed statutory time, and becoming parties to the suit during the existence of the lien, is the same as commencing an original action." § 691. Nonsuit.-Where the intervener claims an interest adverse to both plaintiff and defendant, and plaintiff answers the intervention raising material issues, his right to be heard thereon is not affected by nonsuit granted on motion of defendant. The action is still pending as to such issues, and should be tried, not dismissed."1 § 692. Ordering in necessary parties.-When a complete determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in, and to that end may order amended and supplemental pleadings or a cross-complaint to be filed, and summons thereon to be issued and served. And when, in an action for the recovery of real or personal property, or to determine conflicting claims thereto, a person not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment. The court may, on its own motion, order in necessary parties; but will not, on motion of defendant and against the will of plaintiff, bring in other parties unless their presence is necessary. If a court on the trial makes an order that certain persons be permitted to appear and answer, on the erroneous supposition that they are necessary parties, such persons are not interveners, and do not become parties to the action.45 And if the plaintiff chooses to waive any relief which would render the presence of other parties necessary, and take judgment for that only to which he is entitled as against defendants already in court, and as to which a complete 39 Hocker v. Kelley, 14 Cal. 164. 201. 42 Cal. Code Civ. Proc., § 389. See, also, N. Y. Code Civ. Proc., § 452, and Or. B. & C. Codes, §§ 40, 41; 1 Van Santv. Eq. Pr. 121. 44 43 Settembre v. Putnam, 30 Cal. 490. See, also, Grain v. Aldrich, 38 Cal. 514, 99 Am. Dec. 423. 44 Sawyer v. Chambers, 11 Abb. Pr. 110. Cal. 348, 45 Chase v. Evoy, 58 355. determination can be had, the court may award the latter relief without the addition of other parties." The phrase "when a complete determination," etc., means that there are persons not parties whose rights must be ascertained and settled before the rights of the parties to the suit can be determined." As a court of equity will not permit litigation by piecemeal, and as the whole subject-matter and all the parties should be before it, to determine once and forever their respective claims, the court will order them. to be brought in.48 And it is the imperative duty of the court in such case to order the parties in," although such parties be nonresidents. But a motion made by the plaintiffs, after the dismissal of their complaint, to amend by making an indispensable party a party defendant, is properly denied, where no reason is shown why he was not originally joined.51 Permitting an additional party to be joined after suit has commenced is not reversible error, where the defendants objecting do not show that they were prejudiced, and the plaintiff makes no objection.52 50 § 693. Specific performance. In an action against several for a specific performance of their joint contract to purchase real estate of the plaintiff, and secure a part of the price by their bond and mortgage, the court will not proceed unless all parties are in.53 § 694. Sureties.-Sureties may be let in to defend upon proper application, in the place of their principal.54 But if a party who has given a bond of indemnity to a sheriff takes charge of the defense in an action against the sheriff and defends it by his own attorney, though done in the sheriff's name, the judgment against the sheriff is conclusive against the party giving the bond; as he might have intervened and defended as party to the record, had he so chosen, as he did as a party in interest. The sureties of a defendant in an action of replevin, upon an undertaking given 46 Settembre v. Putnam, 30 Cal. 490. 47 McMahon v. Allen, 12 How. Pr. 39. 48 Wilson v. Lassen, 5 Cal. 114; Ord v. McKee, 5 Cal. 515; Shaver v. Brainard, 29 Barb. 25. 49 Tonnelle v. Hall, 3 Abb. Pr. 205; Davis v. Mayor of New York, 2 Duer, 663. But see 14 N. Y. 506, 67 Am. Dec. 186. 55 50 Sturtevant v. Brewer, 17 How. Pr. 571, 9 Abb. Pr. 414. 51 Peck v. Peck, 33 Colo. 421, 80 Pac. 1063. 52 Jordan v. Greig, 33 Colo. 360, 80 Pac. 1045. 53 Powell v. Finch, 5 Duer, 666. 54 Jewett v. Crane, 13 Abb. Pr. 97, 35 Barb. 208. 55 Dutil v. Pacheco, 21 Cal. 441, 82 Am. Dec. 749. to effect a return of the property in controversy to the defendant pending the action, have an interest in the action which entitles. them to intervene if the defendant is insolvent and the action is not being defended in good faith.50 § 695. Tax.-A. & Co. having on general deposit with B. & Co. seventy-five thousand dollars, a tax for county purposes was levied thereon, and payment demanded of both A. & Co. and B. & Co.; it was held that the county might intervene in an action. concerning the money to recover said tax.57 § 696. Who may intervene.-Where one tenant in common sues to recover possession of the premises, and the damages sustained by the ouster, his cotenants cannot intervene.58 Persons who ought to have been joined as parties, but who were not, may apply to come in, and, if there are no laches on their part, may apply to come in at any time before final judgment." A judgment creditor of a deceased person is not entitled to be made a party to a suit in partition between his heirs and those entitled to his real property. Where a man brought suit to annul a second marriage on the ground that he had a former wife living, and obtained a decree for want of an answer, and then married a third wife, and subsequently the second wife opened the judgment against her marriage on the ground of fraud, and then the third wife was allowed to intervene, and she put in an answer alleging the invalidity of both former marriages and the validity of her own, it was held that both such former marriages could not be adjudged void without an amendment to the complaint.1 § 697. Intervention-Miscellaneous cases-Pleading. The denial of a petition to intervene in an action to establish a trust in certain real estate in favor of the plaintiff, by one claiming the legal title to and possession of a certain portion of the premises involved, is not erroneous, where it does not appear that the rights or remedies of the intervener could be affected by a judgment between the parties to the suit.62 In an action of accounting 56 Coburn v. Smart, 53 Cal. 742. 57 Yuba County v. Adams, 7 Cal. 37. 58 Donner v. Palmer, Bradley Intervener, Cal. Sup. Ct., October term 1867 (not reported). 50 Hubbard v. Eames, 22 Barb. 597. 60 Waring v. Waring, 3 Abb. Pr. 246. 61 Anonymous, 15 Abb. Pr. (N. S.) 171. 62 Curtis v. Lathrop, 12 Colo. 169, 20 Pac. 250. Compare Coffey v. |