McWhirter v. Bowen ( 1905 )

Ingraham, J. (concurring):

I concur with Mr. Justice Patterson. Under the interlocutory judgment, as the plaintiff sued on his own behalf and those similarly situated, any one interested with him in the property could have come in and proved his claim before the referee named therein, and having thus appeared in the action, might have been entitled to take advantage of the interlocutory judgment. The defendant Eisert neither appeared in the action nor did he come in under the interlocutory judgment and present to the referee his claim to an interest in the property; and thus having failed to appear to protect his interest, he ivas not entitled to any relief by the final judgment.

Judgment modified as directed in opinion, and as so modified judgment and order affirmed, with costs to the appellant.