63 64 between partners, firm creditors may join in an intervention for the purpose of sharing in a fund in the hands of one of the partners, resulting from a fraudulent sale by him of the firm property. So a mortgagee of personal property who is entitled by the terms of his mortgage to immediate possession may intervene in an action by a third person against the mortgagor to recover the specific property, and his right to intervene is not affected by the plaintiff taking possession of the property at the commencement of the action on giving a bond as the statute provides. In an action for damages for trespass alleged to have been committed by the defendant in entering upon the plaintiff's land, and constructing and using a roadway across the same, one claiming a grant of a right of way over the land from the plaintiff, and who shows himself to be the real party in interest, and the one by whose order and in whose employment the acts complained of were done, has the right to intervene.65 In an action by one of two water companies claiming the exclusive privilege of supplying water to a certain town and its inhabitants, a temporary injunction was granted restraining the other company from supplying the water; and it was held that certain residents of the town, under the facts and circumstances set forth in their petition, were entitled to intervene and become parties for the purpose of contesting the exclusive privilege asserted by the plaintiff company." Where the whole complaint in intervention is not set out in the record, it will be presumed upon appeal that a demurrer thereto was properly overruled. All the averments of an answer to a complaint in intervention must be considered as denied by the intervener.68 67 § 698. Interpleader.-A defendant against whom an action i pending upon a contract, or for specific personal property, may a any time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon the same contract or for the same property, upon notice to such person and the adverse party, apply to the Greenfield, 55 Cal. 382, Ward v. Waterman, 85 Cal. 488, 24 Pac. 930. 63 Grossini v. Perazzo, 66 Cal. 545, 6 Pac. 450. 64 Martin v. Thompson, 63 Cal. 3. 65 Robinson v. Crescent City etc. Co., 93 Cal. 316, 28 Pac. 950. 66 Wood V. Denver City Water Works Co., 20 Colo. 253, 46 Am. St. Rep. 288, 38 Pac. 239. 67 Kimball v. Richardson-Kimball Co., 111 Cal. 386, 43 Pac. 1111. 68 Pearson v. Creed, 78 Cal. 144, 20 Pac. 302. 71 court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount claimed on the contract, or delivering the property or its value to such person as the court may direct; and the court may, in its discretion, make the order." The granting of the order is within the discretion of the court." But it should not be granted where the action is for the price of goods sold, on the ground that a third person claimed to be the owner of the goods,' even though such third person claimed that the goods had been procured from him by fraud.72 But where defendant alleged that he had been sued by a third person, claiming that the plaintiff sold the goods as his agent, whereas the plaintiff claimed that he sold them in his own right, it was held a proper case to order that defendant be discharged on paying the money into court, and that such third person be substituted as defendant.73 An interpleader will be sustained whenever it is necessary for the protection of a person, from whom several others claim legally or equitably the same thing, debt, or duty, but who has incurred no independent liability to any of them, and does not himself claim an interest in the matter. He must occupy the place of a mere stakeholder. It seems that the material allegations in a complaint in an action of interpleader are that two or more persons have preferred a claim against the plaintiff; that they claim the same thing; that the plaintiff has no beneficial interest in the thing claimed; and that he cannot determine without hazard to himself to which of the defendants the thing belongs.75 74 Under the Washington statutes,76 providing that any person having in his possession any property claimed by more than one person may commence an action against all or any of such persons to have their rights determined, it is not necessary for the plaintiff to show that he has been sued, or is threatened by suit, by any 69 Cal. Code Civ. Proc., § 386, N. Y. Code Civ. Proc., § 820. 70 Barry v. Mutual Life Ins. Co. of N. Y., 53 N. Y. 536. 71 Sherman v. Partridge, 4 Duer, 646. 72 Trigg v. Hitz, 17 Abb. Pr. 436. 73 Johnston v. Lewis, 4 Abb. Pr. (N. S.) 150. 74 Pfister v. Wade, 56 Cal. 43; Pope v. Ames, 20 Or. 199, 25 Pac. 393; De Zouche v. Garrison, 140 Pa. St. 430, 21 Atl. 450; Clark v. Mosher, 75 Crane v McDonald, 118 N. V. 648, 23 N. E. 991. See Dorn v. Fox, 61 N. Y. 268; Stone v. Reed, 152 Mass. 179, 25 N. E. 49; North Pacific Lumber Co. v. Lang, 28 Or. 246, 52 Am. St. Rep. 780, 42 Pac. 799. 76 Ballinger's Codes, §§ 4843-4845. one or more of such parties." These statutes are merely supplemental to the laws of procedure in courts of record.78 Where a tenant finds that there are claimants to the property, he should file a bill of interpleader, making all the adverse claimants parties thereto, and offer to pay the rents into court to abide the ultimate decision of the case." In an action to determine the title or right of possession to real property which at the time of the commencement of the action is in the possession of a tenant, the landlord may be joined as a party defendant.80 A tenant against whom conflicting claims for rent are made may file a bill of interpleader against the several claimants to determine their respective rights to the rent, and in such action the court may determine the rights of the claimants as between themselves.81 FORMS OF INTERVENTION AND INTERPLEADER. § 699. Commencement of complaint by intervener. Form No. 213. [TITLE.] Now comes R. S., and by leave of the court first had and obtained, files this as his complaint in intervention in the aboveentitled cause, and as the grounds of his intervention alleges [state facts showing the right to intervene, and set forth cause of action or defense as in ordinary complaint or answer]. [DEMAND FOR RELIEF.] [VERIFICATION.] $ 700. Order allowing intervention. Form No. 214. The foregoing complaint in intervention having been this day presented to me in open court, and leave asked to file the same by E. F., attorney for R. S., the intervener named therein, it appearing that good cause exists therefor, it is ordered that leave be and is hereby granted to file the same, and that said R. S. be permitted to intervene in said cause. [DATE.] 77 Daulton v. Stuart, 30 Wash. 562, 70 Pac. 1096. 78 Seattle v. Turner, 29 Wash. 515, 69 Pac. 1083. 79 McDevitt v. Sullivan, 8 Cal. 592; McCoy v. Bateman, 8 Nev. 126. [SIGNATURE OF JUDGE.] 80 Cal. Code Civ. Proc., § 379. 81 Schluter v. Harvey, 65 Cal. 158, 3 Pac. 659. See Ketcham v. Brazil Block Coal Co., 88 Ind. 515. § 701. Order to bring in necessary parties, without motion. [TITLE.] Form No. 215. I. This cause coming on to be tried, and it appearing to the court that S. T. is a necessary party to a complete determination of the controversy: II. It is ordered that the summons and complaint in this action be amended by the addition of S. T. as a defendant therein; that the plaintiff cause the said S. T. to be duly served with a copy of the said summons and complaint, further amended as he may be advised, within. days from the date of this order; that the said S. T. have . days to answer the complaint, after such service; and that the trial of this cause be postponed until the expiration of said . days allowed the said S. T. to answer as aforesaid. § 702. Affidavit in action to recover money. [TITLE.] Form No. 216. C. D., being duly sworn, deposes and says: I. That he is the defendant in the above-entitled action. II. That the said action has been commenced and is now pending in this court, against the above-named defendant, on a contract; and that the said defendant has not yet answered therein, and his time to do so does not expire until the . . . day of . . ., 19. ., next. III. That said action is brought to recover the sum of dollars, deposited with said defendant on or about the . day of . . ., 19. ., by one A. B.; and that the plaintiff claims to be entitled to said moneys so deposited, under an assignment thereof to him by the said A. B. IV. That on the . . . day of . . ., 19 .. one M. N. gave to said defendant notice that the said moneys had been assigned to him by A. B., and demanded of said defendant that he pay the said deposit to him; which demand was made without any collusion with the defendant. And this deponent further says that he is not acquainted with the respective merits of said claims, and does not know to which of said parties he can safely pay said. money; but hereby offers to pay the same into court, upon being discharged from liability to either of them, in order that said several claimants may interplead, and settle their claims between themselves. [JURAT.] [SIGNATURE.] § 703. Affidavit where action is brought to recover specific personal property. [TITLE.] Form No. 217. C. D., being duly sworn, deposes and says: I. That he is the defendant in the above-entitled action. II. That the complaint therein was served on him on the day of 19. . at ., and no answer has yet been filed. III. That the property which is claimed by the plaintiff herein was delivered to this deponent for storage by one O. P., of . subject to his order. IV. That the same property is claimed by one Q. R., of . under a written order of the said O. P., dated on the ..." day of 19 . ., and directing its delivery to him as the alleged purchaser thereof; while the plaintiff herein claims under a general assignment of all the property of the said O. P. to him, executed. by the said O. P. on the same day. V. That the defendant is ignorant of the rights of the respective claimants, and is not acting in collusion with either of them. VI. That the defendant is ready and willing to deliver the said property to such person as the court may direct, upon being dis-charged from liability to either of the said claimants. [JURAT.] [SIGNATURE.] § 704. Notice of motion to allow party to interplead. [TITLE.] Form No. 218. Take notice that on the affidavit herewith served, and on the complaint herein, the defendant will move the court, at the courtroom thereof, at . . . on the . . . day of . . ., 19. ., at . . . o'clock in the . noon, or as soon thereafter as counsel can be heard, to substitute M. N., of . ., in his place, as defendant herein, and to discharge this defendant from liability to eitherthe plaintiff or the said M. N., concerning [designate the contract], ..." |