Eaton & Co. v. Royal , 36 Wash. 693 ( 1904 )

Per Curiam. —

The plaintiff above named is the publisher of the “New Era U. S. History,” which history the plaintiff alleges was, on or about May 14, 1900, adopted and prescribed by the state board of education for the use, in certain designated grades, of the common schools of the state, for the period of five years from and after September 1, 1900, and which the plaintiff on said date agreed, in and by a written instrument executed by plaintiff and said board, to furnish in sufficient quantities for the use of the schools for the said term of five years. This action was instituted by plaintiff to enjoin the defendants, as the board of directors of school district No. 1, of Thurston county, from causing or permitting to be used, in the seventh and eighth grades of the schools in said district, any history other than that published by plaintiff and required to .be used in said grades by the state course of study. TSe defendants in their answer denied the material allegations of the complaint, and stated certain new matters as and for affirmative defenses. The plaintiff demurred to the new matters alleged in the answer, and the demurrer was sustained as to each of the affirmative defenses, except the defense that the plaintiff was not the real party in interest, as to which defense the demurrer was overruled. The record is silent as to what, if any, steps were subsequently taken in the cause by the parties tnereto, but at this stage of the proceedings the appellants applied to the court for leave to intervene and become parties defendant in the suit. With their petition for leave to intervene the appellants tendered an answer to plaintiff’s complaint, alleging facts identical with those stated in the answer of the defendants. The petition was “disallowed and dismissed” by the court, and the petitioners thereupon appealed. The question for determination in this proceeding is essentially the same as that presented on the appeal of David Lincoln, intervenor, in Westland Publishing Co. v. Royal (ante p. 399), and recently decided by this court. In that case we were constrained to hold that the petitioner had no legal interest in the matter in litigation, and consequently no right to intervene, and, for the reasons there stated, the order in question is affirmed.