Poehlmann v. Kennedy

By the Court, Niles, J.:

The nonsuit as to the plaintiff, on motion of the defendants, was properly granted. The opening statement of his counsel, taken in connection with the admissions of his verified answer to the intervention, Which formed a part of the pleadings in the case, showed that whatever right of property he may have once had in the subject matter of the controversy, had passed to the assignee in solvency, and was vested in him. (Hittell’s General Laws, Art. 3,843.) He had, therefore, no cause of action against the defendants, whatever claim he might have had against the intervenor. His right to be heard upon the issues made to the intervention by his answer thereto, was not affected by- the nonsuit granted on the motion of defendants.

But we think the Court erred in dismissing the intervention upon the ground that there was no action pending after the nonsuit had been granted. The intervenor was a party to the suit, claiming an interest in the matter in litigation adverse to both, plaintiff and defendants. As such party he was entitled to have the issues raised between himself and each of them tried and determined. This right could not be affected by the dismissal of the plaintiff’s action.

It is urged by the respondents that the order of dismissal should not be disturbed, for the reason that the intervention was defective in that it did not offer a redemption or allege the readiness of the intervenor to pay the debt secured.

In reply to this point, it is sufficient to say that this ground was not suggested in the motion made, or in the succeeding order, which went solely upon the ground that after the granting of the nonsuit there was no action pending, and hence there could be no intervention. A motion of this kind, like a motion for a nonsuit, should point the attention of the Court and of the opposite counsel, to the precise grounds upon which it is made. It is very possible that the supposed defect in the pleading, now presented for the first time, might have been obviated in the Court below, if urged there, by a suitable amendment.

For these reasons the judgment must be reversed and the cause remanded for a new trial. So ordered.

Mr. Chief Justice Wallace did not sit in this case.