Anderson v. Ferguson , 56 Idaho 554 ( 1936 )

The sole question confronting this court is whether or not intervener's complaint in intervention was timely made.

I. C. A., section 5-322, provides:

"Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. 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 any thing 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 attorneys of the parties who have appeared, who may answer or demur to the same within twenty days after such service as if it were an original complaint; and the court may order summons to be issued and served upon the parties to the action or proceeding who have not appeared." (Italics herein.)

Intervener has not attempted to show any community of interest or privity of estate with the respondent's cause of action because his alleged title came through Clifford Ferguson, who is no longer a party to the attachment suit, but has stated a complete and distinct cause of action on his own behalf which arose from the attachment of his alleged undivided one-half interest in sixty-two hogs. (Havird v. Lung, 19 Idaho 790,115 P. 930; Common School Dist. No. 18 v. Twin FallsBank T. Co., 52 Idaho 200, 12 P.2d 774.)

More than four years have elapsed from both the time of attachment and the time of the third party demand. The statute of limitations for claim and delivery is three years. I. C. A., sec. 5-218, and for relief not specifically provided for, four years, I. C. A., sec. 5-224, so even if this is not an action in claim and delivery not governed by sec. 5-218,supra, but by sec. 5-224, supra, the statutory period had expired before the complaint in intervention was filed. Appellant argues the bringing of the attachment suit inures to the benefit of the intervener so far as the running of the limitation statute is concerned, but we find upon an examination of the cases cited by him that the original suit inures to the benefit of the intervener only when there is a community of interest between the intervener and a litigant of the first suit. This rule is apparently the weight of authority. (37 C.J. 1064, sec. 499, note 65, and cases there cited.) And this court held in Potlatch Lumber Co. v. Runkel,16 Idaho 192, at page 199, 101 P. 396, 18 Ann. Cas. 591, 23 L.R.A., N.S., 536, that an intervener claiming property attached:

". . . . is in no respect interested in the question as to whether the defendant is indebted to the plaintiff or not. The interest of the intervenor here is to show that neither plaintiff nor defendant has any interest in this property. In fact, she would not be permitted to interpose a defense personal to the defendant and in the result of which she could have no interest one way or the other."

The only conclusion deducible from this statement is that the court considered the intervener's cause of action was entirely separate and apart from the main controversy and that there is not such community of interest between the intervener and the plaintiff or defendant that the institution of the main cause of action tolls the statute as to the third party's claim. While the authorities cited by appellant hold that an intervener coming in under a statute similar to our own may intervene "before trial," none of them pass directly upon the point involved herein, that is, where the bar of the statute has been raised against an intervener who has not joined the cause of either the plaintiff or the defendant, but has elected to stand on an entirely separate cause of action. Since appellant has not successfully shown by what exception to the statute of limitations he is entitled to recover, we must then construe his rights under the general principles of practice governing new parties. An amendment bringing in new parties does not affect the time of bringing the action as to the plaintiff and the defendant, but the action is commenced as to the new party when he is made a party, except where the addition is as a joint plaintiff, or assignee of the plaintiff who is a real party in interest. (1 C.J. 1160, sec. 414.) Appellant does not qualify under this exception. In the case ofDenton v. Detweiler, 48 Idaho 369, 282 P. 82, the court held that a cross-complaint against an intervener if treated as an amendment to the complaint, set up a new cause of action and the cross-action was barred by the statute of limitations, and further that a counterclaim is subject to the operation of the statute of limitations.

The stipulation does not avail appellant because he was not a party thereto. (60 C.J. 68, sec. 50; Farmers' etc. Sav. Bankv. Hudson, 62 Utah, 131, 218 P. 93.) It applied only to the payment of the money into court, and was not an appearance. (Washington County Land Development Co. v. Weiser Nat. Bank,26 Idaho 717, 146 P. 116.) In other words, the rights of the parties were to be determined as though the hogs had not been sold. Taking that situation as our premise, still the action would in effect be for claim and delivery and the statute of limitations be equally operative.

The third party claim of appellant made on the sheriff is not a pleading (McGaffey Canning Co. v. Bank of America, (Cal.App.) 284 P. 977 (on reargument, McCaffey C. Co. v. Bank ofAmerica, 109 Cal. App. 415, 294 P. 45); McDonald v. Stephens,204 Ala. 359, 85 So. 746); nor does it conform to the requirements of pleadings as set out in I. C. A., sec. 5-601 et seq., so it cannot be said that appellant was a party to the action until his complaint in intervention was filed. The filing of the claim was not an appearance in court. Appearances must be made in conformity with statutes. (4 C.J., 1329, sec. 23.)

Intervener contends that Anderson could not question intervener's right to the hogs because he acquired by the attachment only the rights H.K. Ferguson had, and that H.K. Ferguson had no rights to or interest in the hogs. That, however, was the precise issue to be determined and Anderson by reason of his attachment, the third party claim on the property which cast a cloud on the title to the property, and because of at least Anderson's contingent liability in connection with the bond given the sheriff to indemnify him for damages arising from holding the property in his possession after appellant's demand, had sufficient standing in the litigation to raise the bar of the statute.

In Mendini v. Milner, 47 Idaho 439, 276 P. 313, the court said:

"The statute of limitations is general, is to be liberally construed and must be applied in all cases where an exception is not specifically made. (Vandall v. Teague, 142 Cal. 471,76 P. 35.) Statutes creating exemptions are to be strictly construed and will not be extended by implication." (Italics herein.)

I. C. A., sec. 5-322, supra, does not purport to be an exception to the statute of limitations merely because it states "before the trial." It is merely a statute directing the means by which a party may enter litigation under a stated set of facts, and relates to "Intervention" as the title of the section suggests, as a section under Title V, Chapter 3, dealing with "Parties to Action" — not exceptions to the statute of limitations. By authority of Mendini v. Milner,supra, then, no exception having been specifically made, the statute of limitations must be applied. (I. C. A., sec. 5-201.)

The statutes have given remedies for just such circumstances as intervener was placed in here, and in order to secure relief he must pursue his remedies with the same diligence that he would if there were not other parties litigant; or if there is a delay such as there was in the case at bar, it must be justified by showing that the party seeking redress comes within an exception to the running of the statute of limitations. After a careful examination of the authorities cited by appellant we cannot find where the intervener has brought himself within an exemption of the statute, and we must find that intervener has slept on his right too long, and now has lost his remedy.

It appearing on the face of the complaint in intervention that the cause of action was barred by the statute of limitations, supra, the complaint was properly attacked by demurrer and the demurrer properly sustained in the court below.

The judgment should be affirmed.

Morgan, J., concurs in this dissent.