McNee v. Lynch

26 P. 508, 88 Cal. 519, 1891 Cal. LEXIS 726

Opinion

Temple, C.

On the merits, this case is on all fours with the case of Fulton v. Brannan, just decided by this court, ante, p. 454.

A further question is raised as to the right of the interveners to be heard as such. The bill of exceptions only shows the action of the court on a motion to strike out the petitions of intervention, or some portions of them.

There was no error in refusing to strike out the petition of Warner. Cutler’s petition shows no right to intervene. It amounted simply to a request to be permitted as amicus curise to show that neither party to the contest was qualified to purchase. The duty is cast upon the court in such cases to inquire whether either party is entitled to purchase, and if neither is so entitled, to adjudge accordingly. In such circumstances we think it would be no abuse of discretion to allow an amicus curise to produce evidence to enlighten the court.

The intervenors take nothing by the judgment, and as the bill of exceptions does not show what occurred at the trial, we do not know that either of them appeared or took any part whatever therein. So far as we can know, the plaintiff has not been injured.

Judgment should be affirmed.

Vanclief, C., and Foote, C., concurred.

The Court.—For the reasons given in the foregoing opinion, the judgment is affirmed.