Conley v. Zerber

39 N.W. 113, 74 Iowa 699, 1888 Iowa Sup. LEXIS 97

• Court: Supreme Court of Iowa
• Decided: September 4, 1888
• Status: Published

Opinion

Reed, J

The right to intervene in an action between other parties is given by section 2683 of the Code, which 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 demand•ing anything adversely to both plaintiff and defendant, either before or after issue has been joined in the cause, and before the trial commences.” It will be observed that an interest in the matter in litigation is essential to the right of • intervention created by this provision. Chapter 143, Acts Twentieth General Assembly, and chapter 66, Acts Twenty-first General Assembly, confer upon the citizens of the different counties of the state the right to institute and maintain actions for the abate- . ment of nuisances in their respective counties of the character of that which defendant is charged in the petition with maintaining. The question which we are required to determine is whether by those provisions one citizen has such an interest in the matter in litigation as entitles him to intervene in an action instituted by another citizen of the county for the abatement of a nuisance of that character; and we are of the opinion that no such interest arises under those provisions. The right conferred by them upon the citizen is a mere naked right to maintain the action. That right does not include an interest in the matter in litigation, but is something entirely distinct- from that. The only fact essential to its exercise is that of citizenship in the county. The action is maintained for the protection of a public right or the redress of a public wrong ; and no private interest of the plaintiff is involved, but he is permitted to maintain it for the public benefit. Little-ton v. Fritz, 65 Iowa, 488 ; Applegate v. Winebrenner, 66 Iowa, 67. But the interest which will entitle a party to intervene, under section 2683, must be of a private nature ; that is, he can intervene only for the enforcement or protection of some private right, or the prevention or redress of some private wrong. This is the obvions meaning of the provision. The language of the section must be construed with reference to the facts as they existed when it was enacted. Its scope and effect are not enlarged by the subsequent enactments referred to, for they relate to a different subject. When the section was enacted, a civil action could be maintained by a private party only for “the enforcemeht or protection of a private right, or the prevention or redress'of a private wrong.” Code, sec. 2505. By the words “an interest in the matter in litigation” was meant such interest as would afford the intervenor a right of action ; that is, if he had such right or interest as entitled him to maintain an action, he is permitted by that section to intervene in any suit between other parties in which the same subject-matter is involved. The action of the court in striking intervenor’s petition from the files is clearly right.

Affirmed.