as possible upon the merits, and not upon some technical point which puts no question at rest, but simply renders it necessary to commence a new suit. Most emphatically does this seem to be their duty when the statute has provided a mode for accomplishing this result, and has even required in peremptory terms that this mode shall be pursued. Whenever the objection that there is a defect of necessary or proper parties is raised, it is always possible for the court in a summary manner to order them in, and to retain the cause for that purpose, and to decide the issues upon the merits, when the required addition has been effected. Not only is this course possible, but it is actually enjoined upon the courts by the codes. the courts by the codes. And yet this most beneficial provision of the statutes is to a great extent a dead letter. I believe there is hardly another section of the codes so well calculated, if it were observed in its spirit and letter, to prevent the success of mere technicalities and to promote justice among suitors by procuring the decision of causes upon their merits. In marked contrast with the judicial practice which prevails to so great an extent in the States which have adopted the reformed American procedure, is a provision of the new system of practice recently approved by the British Parliament, which declares that under no circumstances shall an action be dismissed, and the plaintiff turned out of court, because he has committed an error in the selection of parties, either by uniting too many or too few, but that in every instance the court shall make the proper amendment, and by striking out or bringing in, shall shape the action into a proper form and condition for a decision of its issues upon the merits. Although our codes do not contain such a provision in express terms, they do contain all that is necessary for the adoption and enforcement of the same general rule of procedure by the courts. The New York Court of Appeals has recently made a decision which is in close agreement with the foregoing views. It holds that if the plaintiff does not bring in the necessary parties after an objection properly made, the complaint may, in the discretion of the court, be dismissed, but without prejudice to a new action. An unqualified judgment of dismissal in such a case is erroneous. But the complaint should not be dismissed even without prejudice, and the plaintiff thus put to a new action, when the same end can be 1 Supreme Court of Judicature Act; Schedule, § 9. reached by allowing the cause to stand over in order that the plaintiff may add the necessary parties.1 § 320. * 423. II. Intervention. Need not be Necessary Party. Discretion of Court. Time of Application. I proceed first to examine the force and effect of that provision which is found in most of the codes. In order that a person may avail himself of the permission given by it, and may make himself a party to an action, he need not be a necessary party.2 The granting of such an application lies in the discretion of the court, and it should not be permitted if the applicant is already a plaintiff in another suit in which he may obtain all the relief he asks. The application must be made before judgment, if made at all.a * The § 321. 424. Statutory Provision Limited. Illustrations. occasions on which a third person may intervene in a pending action are very few. The scope of the provision is exceedingly limited; it has been said that its operation is confined to those cases in which a bill of interpleader would have been permitted, under the former practice, to accomplish the same end. It is certain that the right to intervene can only be exercised in actions for the recovery of real or personal property. It does 1 Sherman v. Parish, 53 N. Y. 483, 490, 491. [See the important case of Steinbach v. Prudential Ins. Co. (1902), 172 N. Y. 471, 65 N. E. 281, the facts of which are set out in note to §*287. In this case the court said: "The personal representatives of Fehrman were necessary parties, and the court should have dismissed the complaint unless within a reasonable time they were brought in, not necessarily for the protection of the defendant as it had neg lected its rights, but for their own protection, as well as the seemly and orderly administration of justice." See, however, the vigorous dissenting opinion in this case by Haight J. concurred in by O'Brien and Martin JJ. In Hannegan v. Roth (1896), 12 Wash. 695, 44 Pac. 256, the court said: "While a court will not proceed to final judgment in the absence of a necessary party, it will not dismiss the action on account of the nonjoinder of such party, but will retain it until all necessary parties are brought in, after which it will proceed to judgment on the merits." Citing § 292 and 293 of the text.] 2 Carter v. Mills, 30 Mo. 432. * 8 Scheidt v. Sturgis, 10 Bosw. 606. That the granting of the application is discretionary, see Colgrove . Koonce, 76 N. C. 363. [McNamara v. Crystal Mining Co. (1900), 23 Wash. 26, 62 Pac. 81.] 4 Carswell v. Neville, 12 How. Pr. 445; Meadows v. Goff (Ky. 1890), 14 S. W. Rep. 535; Chapman v. Forbes, 123 N. Y. 532, 540. [Safely v. Caldwell (1895), 17 Mont. 184, 42 Pac. 766; Dupont v. Amos (1896), 97 Ia. 484, 66 N. W. 774; Keehn v. Keehn (1902), 115 Ia. 467, 88 N. W. 957; Owens v. Colgan (1893), 97 Cal. 454, 32 Pac. 519; Clarke v. Baird (1893), 98 Cal. 642, 33 Pac. 756; Hibernia Savings and Loan Society v. Churchill (1900), 128 Cal. 633, 61 Pac. 278; McConniff v. Van Dusen (1898), 57 Neb. 49, 77 N. W. 348; Deere v. Eagle Mfg. Co. (1896), 49 Neb. 385, 68 N. W. 504.] 5 Hornby v. Gordon, 9 Bosw. 656. The following cases are illustrations of such intervention: Sims v. Goethe, 82 N. C. 268; Peck v. Parchin, 52 Iowa, 46; People v. Albany & Vt. R. Co., 77 N. Y. 232; Conant v. Frary, 49 Ind. 530. 6 Kelsey v. Murray, 28 How. Pr. 243; not exist, therefore, in an action to recover money; as, for example, in a suit for wharfage, persons claiming to be owners of the wharf were not permitted to intervene;1 nor in an action in the nature of a creditor's suit, to reach a surplus of money in a certain person's hands; 2 nor in an action to dissolve a partnership, and for an accounting; nor in any action on contract for the recovery of debt or damages. In an action to recover possession of goods, on account of the vendee's fraud, third persons, claiming to have purchased them from him, cannot intervene.5 18 Abb. Pr. 294; Tallman v. Hollister, 9 How. Pr. 508; Judd v. Young, 7 How. Pr. 79. 1 Kelsey v. Murray, 18 Abb. Pr. 294. 5 Hornby v. Gordon, 9 Bosw. 656. [For additional cases in which intervention was not permitted, see the following: Murray v. Polglase (1899), 23 Mont. 401, 59 Pac. 439 (by one who had not filed adverse claim under the statute to mining claim, though he claimed an interest in the premises adverse to both plaintiff and defendant); Dietrich v. Steam Dredge (1894), 14 Mont. 261, 36 Pac. 81 (by a stranger to a suit commenced, and who had not obtained leave of court or made any showing by complaint, but who upon his own motion appeared and demurred to the complaint); Denver Power & Irriga tion Co. v. Denver, etc. Co. (1902), Col. —, 69 Pac. 568 (by a party who had no interest in the subject-matter of dispute between litigants); Ball v. Cedar Valley Creamery Co. (1896), 98 Ia. 184, 67 N. W. 232 (by one claiming an interest in property about to be sold under an execution issued upon a judgment); Bank of Commerce v. Timbrell (1900), 113 Iowa, 713, 84 N. W. 519 (by one to whom an absolute assignment had been made; he must be substituted as plaintiff): Hoppe v. Fountain (1894), 104 Cal. 94, 37 Pac. 894 (by parties holding title not subject to a mortgage in an action brought to foreclose the mortgage); Goodrich v. Williamson (1901), 10 Okla. 588, 63 Pac. 974 (by a general creditor of a husband claiming that the promissory note sued upon was executed by the wife in fraud of the creditors of the husband of whom the intervenor was one, the latter asking that the proceeds of the note be awarded to it); Bray v. Booker (1897), 6 N. D. 526, 72 N. W. 933 (by a bank, who was the creditor of the vendor, in a suit by the vendor against the vendee to enforce a vendor's lien for the unpaid purchase price, the vendee having agreed to pay a portion of the purchase price to the bank); McNamara v. Crystal Mining Co. (1900), 23 Wash. 26, 62 Pac. 81; Dickson v. Dows (1902), 11 N. D. 404, 92 N. W. 798; Churchill v. Stephenson (1896), 14 Wash. 620, 45 Pac. 28 (by a mere general or contract creditor in an action against an administrator for the recovery of real Neb. estate); Haines v. Stewart (1902), -, 91 N. W. 539 (by one who merely claims to be the owner of attached property for the purpose of having his ownership determined in the attachment suit); Omaha S. R. Co. v. Beeson (1893), 36 Neb. 361, 54 N. W. 557 (must have some interest in the subject of controversy. A mere contingent liability to answer over to the defendant, without any privity with the plaintiff, is not sufficient); Stanley v. Foote et al. (1900), 9 Wyo. 335, 63 Pac. 940 (by a claimant to money garnished, or property attached in an action between other parties, for the purpose of having his rights thereto determined); Urlan v. Weeth (1902), Neb., 89 N. W. 427 (by one alleging that he was the son of the mortgagor, in a mortgage foreclosure suit, that the premises mortgaged constituted a homestead, that the mortgagor was dead and the intervenor was seized in his own right of the real estate described in his petition, and asking that his interest in the homestead be determined. The This ruling, however, is not based upon the nature of the suit itself, but upon the absence of any rights in the proposed intervenors. § 322. *425. Additional Illustrations. The following are some instances in which an intervention has been permitted. In an action for the partition of lands, any person having an interest in the land may intervene; but when the partition is among the heirs and devisees of a deceased owner, a judgment creditor of such decedent has no such interest nor right. In an action to recover land, a landlord may intervene when his tenant only has been made a defendant; 2 and in an action to recover the possession of goods taken on execution, the execution creditor may intervene. In a suit to compel the specific performance of a contract to convey land against the vendor alone, a third person alleging title in himself to the same land from the same vendor, prior and paramount to that of the plaintiff, was allowed to intervene and to defend. It was said that the intervenor need not be a necessary party, but should be permitted to come in if the judgment as between the original parties would cast a cloud upon his own title. Under the former practice, no intervention was ever permitted in actions at law, except that in ejectment the landlord might make himself a defendant in place of his tenant.5 court said: "The matters set up in the petition for intervention of Herman Ruhl are not determined or in any way affected by the decree in this case. They were not necessary to a proper determination of the matters presented in the issues herein, and the motion to strike the petition of intervention from the files was correctly sustained;" Moline, Milburn & Stoddard Co. v. Hamilton (1898), 56 Neb. 132, 76 N. W. 455 (by a third person who filed a petition of intervention in a replevin case, in effect nothing but a general denial, the court said: "The first requisite of an intervention is that the intervenor show that he claims an interest in the subject-matter of the litigation "); Bohart v. Buckingham (1901), 62 Kan. 658, 64 Pac. 627; Gammage v. Powell (1897), 101 Ga. 540, 28 S. E. 969.] 1 Waring v. Waring, 3 Abb. Pr. 246. See Baker v. Riley, 16 Ind. 479, which holds that a person claiming title to the whole land should not be permitted to intervene in a partition suit. 2 Godfrey v. Townsend, 8 How. Pr. 398. 3 Conklin v. Bishop, 3 Duer, 646. Intervention in attachment proceedings by a person claiming an interest in the property: Blair v. Puryear, 87 N. C. 101. 4 Carter v. Mills, 30 Mo. 432. In Summers. Hutson, 48 Ind. 228, a third person was permitted to intervene in an action upon a promissory note, to make himself a defendant, to set up in his answer facts showing that he was the real party in interest, and the equitable owner of the note, and the one solely entitled to its proceeds, and to recover thereon as against the maker, who was the original defendant. This is certainly identical with the system which prevails in Iowa and California. This intervention was permitted under the general provision of § 18, that "any person may be made a defendant who has an interest in the controversy adverse to the plaintiff." 5 Hornby v. Gordon, 9 Bosw. 656; Godfrey v. Townsend, 8 How. Pr. 398. [Mooney v. N. Y. El. R. Co. (1900) § 323. *126. The Iowa and California System of Intervening. Illustrative Examples. The peculiarities of this proceeding, the re 163 N. Y. 242, 57 N. E. 496, was an action by a property owner against a railroad to restrain its operation, by injunction, and for damages. Pending the action plaintiff conveyed the premises to one Cohen, who in turn conveyed to one Scallion. In plaintiff's deed to Cohen the former " served the easements of light, air, and access as taken and used by the defendants, and all the claims for damages for such taking and use, both as to the fee and rental value, past, present and future;" and in Cohen's deed to Scallion the same reservations were made. At the trial defendants moved to dismiss the complaint on the ground that plaintiff was not then the owner of the fee or of any part thereof, or entitled to any relief by injunction. The court reserving its decision upon this motion, an adjournment was moved on behalf of the defendants until all the parties in interest were properly before the court "by an application on the part of the plaintiff for leave to serve a supplemental summons and complaint, bringing in his grantees as parties plaintiff, with leave to the defendants to answer the supplemental complaint." The court not passing upon this motion at the time, thereupon Cohen and Scallion requested to be made parties plaintiffs and consented to submit their rights to the court. This request was granted, and an order made that the pleadings and proceedings be amended accordingly. The defendants were lowed on the trial to make any defence that they may be advised, with the same force and effect as if a supplemental complaint and answer had been made and served," and for that purpose "the cause was postponed for two weeks." The trial court awarded a money judgment to Mooney, and also to Cohen and Scallion, each in a different amount; and also awarded an injunction to be operative upon certain conditions named. The Appellate Division reversed the judgment. The question presented by the record in the Court of Appeals was the power of the trial judge, at the trial, to bring in Cohen and Scallion as parties. In reversing the case the Court of Appeals, among other things, said: "There are various al ways in which it is competent for the court of original jurisdiction to bring in new parties, and the particular course that it may decide to adopt generally presents a question of choice or discretion not open to discussion in this court. The facts which rendered the presence of the new parties necessary in order to permit a final adjudication of the controversy were patent and undisputed. They were evidenced by the two conveyances made subsequent to the commencement of the action, and the defendants were permitted by the court to raise any question growing out of these new facts that they could raise in any form or in any manner. The original plaintiff, by his counsel, suggested one method of bringing in the new parties, while the defendants' counsel suggested another method. The defendants' method was to put the plaintiff to his application at a Special Term to amend the process and the pleadings and to serve a supplemental complaint with the right to the defendants to serve a supplemental answer. The learned trial judge doubtless had the power to compel the plaintiff to resort to that method, dilatory as it was, but he decided to make them parties on their own application and to let the cause proceed as if everything had been done that the defendants' counsel asked. The contention of the learned counsel for the defendants is that the judge had no power to do that. In this we think he is mistaken. By the provisions of the Code extensive powers in this respect are conferred upon the court of original jurisdiction." The court after quoting the provisions of the statute continued as follows: "In view of these broad provisions of the statute, it cannot be said that the trial court was without power to bring in, as parties plaintiff, those persons who had become interested in the realty during the pendency of the suit. The manner in which the power was exercised is a question of discretion and not of law. The court had the power to order and direct that the grantees of the premises, pending the action, should be made parties by amendment of the pleading or otherwise as the case requires. . . . The only question |