§ 310. 66 * 413. Statutory Provision of Second Form. The second form of the statutory provision creating and regulating the subject of Intervention" is as follows: "Any person who has an interest in the matter in litigation, in the success of either of the parties to the action, or against both, may become a party to an action between other persons, either by joining the plaintiff in claiming what is sought by the petition, or by uniting with the defendant in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, either before or after issue has been joined in the cause, and before the trial commences. The court shall determine upon the intervention at the same time that the action is decided, and the intervenor has no right to delay; and if the claim of the intervenor is not sustained, he shall pay all costs of the intervention. The intervention shall be by petition, which must set forth the facts on which it rests; and all the pleadings therein shall action to recover upon a contract, or an The braska, §§ 46-48; North Carolina, § 65; Nevada, § 17; [Arizona, Rev. St., 1901, § 1308; Arkansas, Sand. & Hill's Dig., §§ 5635-5637; Colorado, §§ 16-18; Connecticut, Gen. St., 1902, §§ 621, 1019; Idaho, Code Civ. Pro., 1901, §§ 3175, 3176, 3178; Indiana, Burns' St, §§ 273, 274; Iowa, Code, 1897, §§ 3466, 3487; Kansas, Gen. St., 1901, §§ 4469-4471 ; Kentucky, Code, 1895. §§ 28. 29; Missouri, Rev. St., 1899, § 543; Montana, §§ 588, 591; North Dakota, Rev. Codes, 1899, S$ 5238, 5240; Ohio, Bates' St., §§ 5013, 5014, 5016; Oklahoma, St., 1893, §§ 3913– 3915; Oregon, Hill's Laws, §§ 40, 41; South Carolina, Code, 1893, § 143; South Dakota, Ann. St., 1901, $$ 6085, 6087; Utah, Rev. St., 1898, $$ 2924, 2926; Washington, Bal. Code, $$ 4840, 4842; Wisconsin, St., 1898, § 2610; Wyoming, Rev. St., 1899, §§ 3487, 3488, 3490.] Several of these sections differ somewhat from the language of the New York code quoted in the text, but the differences are not material; they relate entirely to details of practice, and do not enlarge nor restrict the power conferred upon the courts. See People v. Albany & Vt. R. Co., 77 N. Y. 232; Chapman . Forbes, 123 N. Y. 532, 539; Ladd v. Stevenson, 112 N. Y. 325; Johnston v. Donvan, 106 N. Y. 267. be governed by the same principles and rules as obtain in other pleadings." 1 § 311. * 414. Three Transactions herein. First of said Transactions. Moving Party. The several clauses thus quoted at large relate to and establish three entirely different transactions in the conduct of an action. Not a little confusion has arisen from a neglect to keep these three subjects separate; the requisites of the one have been confounded with those of another, and thus mistakes have followed which a little care in examining the statute would have obviated. The three transactions referred to are the following: The first is provided for in all the codes, and is the brief enactment of a familiar rule in equity. It is the bringing in additional parties by the court when a complete determination of the controversy cannot be had without their presence. This act plainly contemplates the fact that there are already parties before the court, defendants against whom the plaintiff has a cause of action, and is entitled to some relief. The enlarging the number of parties, under such circumstances, is clearly not the same thing as the commencing a new action because the plaintiff has failed to make out any cause of action against those 1 Code of Iowa [1897, §§ 3594-3596], slightly changed in phraseology from the former revisions of the statutes; California, Code of 1872, § 387: "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 anything 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 parties to the action or proceeding who have not appeared. and upon the attorneys of the parties who have appeared, who may answer or demur to it as if it were an original complaint." This provision is somewhat changed from the original form in the statutes of 1854, ch. 84, $$ 71-74. It is substantially the same as that in Iowa, except that the intervenor must obtain leave of the court to file his complaint, while in Iowa he files his petition as a matter of course at his own election. [The provisions of the Calfornia statute respecting intervention are found in substantially similar form in Idaho, Code Civ. Pro., 1901, § 3177; Montana, § 589; North Dakota, Rev. Codes, 1899, § 5239; South Dakota, Ann. St., 1901, § 6086; Utah, Rev. St., 1898. § 2925; Washington, Bal. Code, § 4846; Colorado, §§ 22-24. The provisions of the Iowa statute are found in substantially similar form in Minnesota, Gen. St., 1894, § 5273; Nebraska, Comp. St., 1901, §§ 5638-5640; Nevada, Comp. Laws, 1900, § 3694. The Arizona statute reads as follows: "Any person who has an interest in the subject-matter of the suit which can be affected by the judg ment, may, on leave of the court or judge, intervene in such suit or proceeding at any time before the trial." Rev. St., 1901, § 1278.] whom he has already sued. By whose desire or on whose motion the additional parties shall be brought in, the section does not specify, but the terms are broad enough to include every case. In the majority of instances the plaintiff doubtless applies for the additional parties. Cases may and do arise in which the defendant, deeming it necessary to protect his own interests, makes the application. Finally, the court may, on its own motion, order in the persons whose presence it regards proper to a complete determination of the issues. * § 312. 415. Second of said Transactions. Scope of Statutory Provision herein. Moving Party. The second of these transactions, in the progress of an action, is the bringing in and making a party to the suit a third person upon his own application, or, in the very appropriate language of certain codes, the Intervening of a third person. In respect to this proceeding there is the marked difference between the two types of statutory provisions already spoken of. Most of the codes, following that of New York, have legislated upon the subject with great caution, and have merely given a certain extension to the familiar common-law practice of permitting a landlord to come in and defend an action of ejectment in the place of his tenant. The provision itself is very brief, and by its terms is confined to actions for the recovery of real or personal property. Beyond a doubt it embraces all equitable actions in which the remedy is the recovery of real or personal property, and is not restricted to the legal actions which correspond to the ancient ejectment and replevin. This short and simple clause is the only one which authorizes a third person to be made a party upon his own motion. Origin of. § 313. * 416. Intervention in Iowa and California. Passing to the codes of Iowa and California, we see that Intervening rises at once into a proceeding of great importance. It may be resorted to in any and all actions, and at every stage in the action prior to the commencement of the trial. The intervenor may have an interest with the plaintiff, or with the defendant, or one special to himself and adverse to both of the original parties. He does not ask the privilege of intervening, and obtain that privilege by an order; he intervenes as a matter of right, by filing and serving his petition in the same manner as though he was commencing an ordinary action, and his rights are passed upon and disposed of, together with those of the plaintiff and defendant, at the trial. It is plain that this is a judicial proceeding utterly unknown before in our ordinary courts, entirely unlike anything which had been customary in the common law or equity tribunals of England or the United States. Indeed, it was confessedly borrowed from the procedure established by the code of Louisiana. § 314.417. Third of said Transactions. Interpleader. How Distinguished from other of said Transactions. The third judicial transaction is the act of a defendant in procuring another person, not a party to the suit, to be substituted in place of himself as the party defendant, and himself to be thereby discharged from all liability in respect of the cause of action, a special remedy long known in another form as an Interpleader. It should be carefully distinguished from each of the two former proceedings. Unlike the second, the stranger does not come in on his own motion; unlike the first, the application can only be made by a defendant. It is confined in its operation to three kinds of actions: those brought to recover money on a contract, either debt or damages, those brought to recover specific real property, and those brought to recover specific personal property. It is a substitute, by means of the summary mode of a motion and an order made thereon, for the ancient equitable action called the Bill of Interpleader. The consideration of this subject does not legitimately fall within the purposes of the present work; it does not involve the question who are and who are not proper 1 [But see East Riverside Irrigation District v. Holcomb (1899), 126 Cal 315, 58 Pac. 817. In this case third parties had been brought in and made defendants at the request of the original defendant and against the objection of the plaintiff. These third parties "set up new matters and causes of action not involved in the original suit not defences to the action, and not available at all to the original defendant," and their right so to do was one of the questions passed upon by the Supreme Court. Among other things the Court said: "The principles which govern are, however, to a great extent those which apply to interventions and counterclaims and the bringing in of new parties and those which would apply to cross-bills under the old equity practice. The general rule is, that a plaintiff may select those whom he desires to make defendants, and that new parties brought in against his will cannot be allowed to set up against him defences and affirmative causes of action which the original defendant could not have set up; and this is especially so where the granting of the relief sought by the original complaint would not have prejudiced the other causes of action which the new parties seek to have adjudicated. Peculiar circumstances may make exceptions to the rule, but the general principle is as above stated." See also Clay County Land Co. v Alcox (1902), 88 Minn. 4, 92 N. W. 464. See Vanmeter v. Fidelity Trust Co. (1899), 107 Ky. 109, 53 S. W. 10, in which Horn v. Volcano Water Co., 13 Cal. 62, is quoted and approved.] parties, and there is no possible reason for its being discussed in this connection except that the statutory provision which regulates it is immediately associated with other clauses which do relate to parties. The two other judicial proceedings will now be examined with the aid of such judicial decisions as have explained their scope and effect. $315. *418. I. Bringing in Additional Parties. When the Court must act. The issues between the original parties are to be determined, if that can be done without prejudice to the rights of others, or by saving the rights of others; if this be possible, the cause should be adjudicated as it was presented for decision.2 1 [See the following recent cases respecting Interpleader: Hirsch v. Mayer (1901), 165 N. Y. 236, 59 N. E. 89; E. G. L. Co. v. McKeige (1893), 139 N. Y. 237, 34 N. E. 898; First Nat. Bank v. Beebe (1900), 62 O. St. 41, 56 N. E. 485; Johnston v. Oliver (1894), 51 O. St. 6, 36 N. E. 458; Brownwell & Wright Car Co. v. Barnard (1897), 139 Mo. 142, 40 S. W. 762; Scott-Force Hat Co. v. Hombs (1894), 127 Mo. 392, 30 S. W. 183; Roselle v. Farmers' Bank (1893), 119 Mo. 84, 24 S. W. 744; McFadden v. Swinerton (1900), 36 Ore. 336, 59 Pac. 816; North Pacific Lumber Co. v. Lang (1895), 28 Ore. 246, 42 Pac. 799; Austin v. March (1902), 86 Minn. 232, 90 N. W. 384; John R Davis Lumber Co. v. The First National Bank of Milwaukee (1894), 87 Wis. 435, 58 N. W. 743; Jaques v. Dawes (1902), - Neb. -, 92 N. W. 570; Hartford Life & Annuity Ins. Co. v. Cummings (1897), 50 Neb. 236, 69 N. W. 782; Daulton v. Stuart (1902), 30 Wash. 562, 70 Pac. 1096; Walker v. Bamberger (1898), 17 Utah, 239, 54 Pac. 108; Hockaday v. Drye (1898), 7 Okla. 288, 54 Pac. 495.] 2 [In Clay County Land Co. v. Alcox (1902), 88 Minn. 4, 92 N. W. 464, plaintiff commenced an action against Alcox for the restitution of its offices and to restrain him from using them. "The answer denied the allegations of the complaint and alleged that the appellant commenced the action in the name of the land company without authority for his own benefit. It then alleged that the respondent and appellant were co-partners under the firm name of the Clay County Land Company, for the purpose of buying and selling real estate; that the prosecu |