OPINION
By HURD, J.
This is an appeal on questions of law from the Municipal Court of Cleveland.
The facts which are not in dispute, are briefly as follows:
The Fidelity & Casualty Company of New York on the 24th of July, 1946, made application to the Municipal Court of Cleveland for leave, to become a party defendant and to file an answer and cross-petition against The Indemnity Insurance Company of North America, claiming to have an interest in the controversy which required it to become a party for the protection of its interests.
This application for leave to intervene and become a party defendant was denied, the journal entry being as follows:
“Aug. 7,1946. To Court: Application of Fidelity & Casualty Co., to become party defendant and file answer and cross-petition denied on sole ground that same cause of action is pending in common pleas court. Other ground not considered, petition and cross-petition ordered stricken. Fidelity & Casualty Co. excepts.”
The appeal is from this ruling denying intervention.
The answer and cross-petition presented is a part of the record in this case and sets forth inter, alia that one Cary Myles recovered a judgment in the common pleas court of Cuyahoga County against The Lees-Bradner Company, in the sum of Ten Thousand Dollars, for injuries sustained when he was shot by Melvin Meineke, a private policeman, patrolling the premises of The Lees-Bradner Company. The judgment was paid by The Fidelity & Casualty Company of New York as insurer of The Lees-Bradner Company.
[492]*492It is conceded, by the parties that thereafter The Fidelity & Casualty Company of New York commenced suit in the common pleas court against The Indemnity Insurance Company of North America, a defendant in this case, on a $1000.00 private policeman bond, issued by The Indemnity Insurance Company of North America, with Melvin Meineke as principal, and another $1000.00 concealed weapons bond, issued by the same company on Melvin Meineke, claiming to be subrogated to the rights of Gary Myles, under the bonds, by virtue of the payment of the judgment. Thereafter, Gary Myles, the minor, by Meredith H. Myles, his guardian and next friend, brought this action against Melvin Meineke and The Indemnity Insurance Co. of North America, in the Municipal Court of Cleveland, to recover upon the same bonds.
The controversy in this case hinges upon the construction of §11255 GC, which is as follows:
“Any person may be' made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.”
It has been held that this section adopts the rule in equity which allows all parties interested in the controversy or who are necessary to a complete determination of the questions involved to become parties. See Penn v Hayward, 14 Oh St 302; Osborn v McClelland, 43 Oh St 284; 1 N. E. 644; Barnes v Christie, 102 Oh St 160, 131 N. E. 352; 107 Oh St 630.
Apart from the statute, this is the general rule. It is stated in 39 American Jurisprudence p. 939, as follows:
“As a general rule the right to intervene exists in favor of one who claims to be the owner or to have some interest in property which is the subject of litigation, and this without particular regard to the value of the property or the right claimed therein.”
It has also been held that §11255 GC contemplates that one sought to be made a defendant shall have an interest adverse to plaintiff, or shall be a person who is a necessary party to a complete determination or settlement of a question involved therein and that the overruling of a motion .to intervene as a defendant is a final order from which appeal will lie and that a failure to file a bill of exceptions is not ground for dismissal of an appeal from an order overruling a motion to intervene. In such a case a reviewing court is limited to [493]*493a determination of error from the transcript of docket and journal entries and original papers. See Central Nat'l Bank v Newton Steel Co., 61 Oh Ap 57, 15 OO 83; 22 N. E. (2d) 428.
The appellant here claims an interest adverse to that of plaintiff and likewise adverse to that of defendant, Indemnity Insurance Co. of North America; that it is entitled to be subrogated. to the rights of plaintiff against defendant, Indemnity Insurance Co. of North America, by reason of the judgment of $10,000 recovered against it by plaintiff herein. This claim is denied by plaintiff.
While there is a specific provision for intervention under §11263 GC in an action for the recovery of real or personal property, the courts have not restricted the right of intervention of a third person to such actions.
“Secs. 11255 and 11261 GC relating to parties defendant and to the right of a person claiming an interest to be made a party, provide for the equitable rule which prevailed In chancery practice prior to the adoption of the Code. They confer a discretion in the trial court, but this discretion is not to be arbitrarily exercised; it must be exercised with due regard to established rules, prominent among which is the duty to avoid a multiplicity of suits and to attain a final and complete termination of all questions involved with the least delay and the least possible expense. The court may abuse its discretion in this regard by overruling the motion of one who is a proper but not a necessary party to the determination of the suit ” 30 O. Jur. §65, page 794.
The supreme court in the case of Lake Erie & Western Railroad Co. v Falke, and The Phoenix Insurance Company, 62 Oh St 297, paragraph 4 of- syllabus, held:
“4. In an action brought by the owner against the railroad company to enforce such liability, an insurer, having before the termination of the action, made payment to the owner on account of such loss, should intervene for the purpose of being subrogated to the rights of the owner to the extent of such payment, and the amount recovered from the railroad company should be adjudged to the owner and the insurer according to their respective interests.” (emphasis ours)
In the case of General Construction Company v Village of Lakewood, 17 O. C. C. Rep. (N. S.) 165, this court held: (syllabus 1)
[494]*494... “1. Because a judgment against a surety binds the principal having notice of the pending action, and payment thereof by the former may be recouped from the latter, in a suit against the surety alone, the principal has ‘an interest in the controversy adverse to the plaintiff’ and may therefore become a party defendant.”
Construing §11225 GC in consonance with its obvious purpose, and in the light of the authorities cited and quoted, and other authorities to the same general effect, it would appear that in the instant case the appellant comes within the pur•view of the provisions of §11255 GC, and therefore should be permitted to intervene and file an answer and cross-petition on the ground that the interest of the appellant is adverse to that of plaintiff and also adverse to the defendant, The Indemnity Insurance Company of North America.
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OPINION
By HURD, J.
This is an appeal on questions of law from the Municipal Court of Cleveland.
The facts which are not in dispute, are briefly as follows:
The Fidelity & Casualty Company of New York on the 24th of July, 1946, made application to the Municipal Court of Cleveland for leave, to become a party defendant and to file an answer and cross-petition against The Indemnity Insurance Company of North America, claiming to have an interest in the controversy which required it to become a party for the protection of its interests.
This application for leave to intervene and become a party defendant was denied, the journal entry being as follows:
“Aug. 7,1946. To Court: Application of Fidelity & Casualty Co., to become party defendant and file answer and cross-petition denied on sole ground that same cause of action is pending in common pleas court. Other ground not considered, petition and cross-petition ordered stricken. Fidelity & Casualty Co. excepts.”
The appeal is from this ruling denying intervention.
The answer and cross-petition presented is a part of the record in this case and sets forth inter, alia that one Cary Myles recovered a judgment in the common pleas court of Cuyahoga County against The Lees-Bradner Company, in the sum of Ten Thousand Dollars, for injuries sustained when he was shot by Melvin Meineke, a private policeman, patrolling the premises of The Lees-Bradner Company. The judgment was paid by The Fidelity & Casualty Company of New York as insurer of The Lees-Bradner Company.
[492]*492It is conceded, by the parties that thereafter The Fidelity & Casualty Company of New York commenced suit in the common pleas court against The Indemnity Insurance Company of North America, a defendant in this case, on a $1000.00 private policeman bond, issued by The Indemnity Insurance Company of North America, with Melvin Meineke as principal, and another $1000.00 concealed weapons bond, issued by the same company on Melvin Meineke, claiming to be subrogated to the rights of Gary Myles, under the bonds, by virtue of the payment of the judgment. Thereafter, Gary Myles, the minor, by Meredith H. Myles, his guardian and next friend, brought this action against Melvin Meineke and The Indemnity Insurance Co. of North America, in the Municipal Court of Cleveland, to recover upon the same bonds.
The controversy in this case hinges upon the construction of §11255 GC, which is as follows:
“Any person may be' made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.”
It has been held that this section adopts the rule in equity which allows all parties interested in the controversy or who are necessary to a complete determination of the questions involved to become parties. See Penn v Hayward, 14 Oh St 302; Osborn v McClelland, 43 Oh St 284; 1 N. E. 644; Barnes v Christie, 102 Oh St 160, 131 N. E. 352; 107 Oh St 630.
Apart from the statute, this is the general rule. It is stated in 39 American Jurisprudence p. 939, as follows:
“As a general rule the right to intervene exists in favor of one who claims to be the owner or to have some interest in property which is the subject of litigation, and this without particular regard to the value of the property or the right claimed therein.”
It has also been held that §11255 GC contemplates that one sought to be made a defendant shall have an interest adverse to plaintiff, or shall be a person who is a necessary party to a complete determination or settlement of a question involved therein and that the overruling of a motion .to intervene as a defendant is a final order from which appeal will lie and that a failure to file a bill of exceptions is not ground for dismissal of an appeal from an order overruling a motion to intervene. In such a case a reviewing court is limited to [493]*493a determination of error from the transcript of docket and journal entries and original papers. See Central Nat'l Bank v Newton Steel Co., 61 Oh Ap 57, 15 OO 83; 22 N. E. (2d) 428.
The appellant here claims an interest adverse to that of plaintiff and likewise adverse to that of defendant, Indemnity Insurance Co. of North America; that it is entitled to be subrogated. to the rights of plaintiff against defendant, Indemnity Insurance Co. of North America, by reason of the judgment of $10,000 recovered against it by plaintiff herein. This claim is denied by plaintiff.
While there is a specific provision for intervention under §11263 GC in an action for the recovery of real or personal property, the courts have not restricted the right of intervention of a third person to such actions.
“Secs. 11255 and 11261 GC relating to parties defendant and to the right of a person claiming an interest to be made a party, provide for the equitable rule which prevailed In chancery practice prior to the adoption of the Code. They confer a discretion in the trial court, but this discretion is not to be arbitrarily exercised; it must be exercised with due regard to established rules, prominent among which is the duty to avoid a multiplicity of suits and to attain a final and complete termination of all questions involved with the least delay and the least possible expense. The court may abuse its discretion in this regard by overruling the motion of one who is a proper but not a necessary party to the determination of the suit ” 30 O. Jur. §65, page 794.
The supreme court in the case of Lake Erie & Western Railroad Co. v Falke, and The Phoenix Insurance Company, 62 Oh St 297, paragraph 4 of- syllabus, held:
“4. In an action brought by the owner against the railroad company to enforce such liability, an insurer, having before the termination of the action, made payment to the owner on account of such loss, should intervene for the purpose of being subrogated to the rights of the owner to the extent of such payment, and the amount recovered from the railroad company should be adjudged to the owner and the insurer according to their respective interests.” (emphasis ours)
In the case of General Construction Company v Village of Lakewood, 17 O. C. C. Rep. (N. S.) 165, this court held: (syllabus 1)
[494]*494... “1. Because a judgment against a surety binds the principal having notice of the pending action, and payment thereof by the former may be recouped from the latter, in a suit against the surety alone, the principal has ‘an interest in the controversy adverse to the plaintiff’ and may therefore become a party defendant.”
Construing §11225 GC in consonance with its obvious purpose, and in the light of the authorities cited and quoted, and other authorities to the same general effect, it would appear that in the instant case the appellant comes within the pur•view of the provisions of §11255 GC, and therefore should be permitted to intervene and file an answer and cross-petition on the ground that the interest of the appellant is adverse to that of plaintiff and also adverse to the defendant, The Indemnity Insurance Company of North America.
In our opinion, the merits of the issue as to, the right of the appellant to subrogation are not before this court for adjudication and were not before the trial court because the trial court denied the right of intervention on one ground only, namely, “that the same cause of action” was pending in another court. It is our view that this objection could be raised only by pleading after the allowance of intervention. It is a rule that an objection on this ground can be raised either by demurrer or by answer. By demurrer, when it appears on the face of the petition “that there is another action pending between the same parties for the same cause” and by answer, “when the objection does not appear on the face of the petition.” In this manner an issue would thereby be proparly joined for adjudication according to law.
It is of paramount importance, in our system of jurisprudence, that every person shall have a right to his day in ■court on any justiciable issue. To secure this right and to provide for orderly process, Ohio has adopted a Code of Procedure which should be followed by our courts. In doing so it is necessary to distinguish between the right to an adjudication upon issues properly joined and the denial of a right to intervene and join issues; the first grants to the party his day in court, the latter denies it. It would appear in this case that' the trial court decided an issue before it was joined by proper pleadings, thereby denying the appellant its day in court in the manner provided by our Code of Civil Procedure.
There is another question which has not been argued by counsel, which actually arises from admissions of counsel in ■open court and by way of briefs. An action was brought and Is now pending in the common pleas court, by The Fidelity & [495]*495Casualty Company of New York against The Indemnity insurance Company of North America on the two bonds, but. Gary M. Myles the plaintiff in this case, was not made and is; not a party in the case pending in common pleas court.
Clearly there can be but one recovery against The Indemnity Insurance Company of North America on the two bonds sued upon in this case. $1000.00 is the limit of the Indemnity-Insurance Company’s liability on each bond. If plaintiff recovers a judgment in this case it is obvious that payment off the judgment would bar any right of the Fidelity & Casualty Company of New York to recover on the same bonds. How, then, is the Fidelity & Casualty Company of New York to protect itself unless it is permitted to intervene in this case?
There are really only two issues to be determined in- this'case. First, is the Indemnity Insurance Company of Norths. America liable on the bonds? On this issue the plaintiff and1, the Fidelity & Casualty Company, the intervenor, are in agreement. The second issue is: If the Indemnity Insurance Company of North America is liable on the bonds — Who is entitled to make collections on the bonds, the plaintiff, or the Fidelity & Casualty Company of New York?
It should require no argument that this question should be determined in one action in which both plaintiff and fire-insurance company, intervenor, are parties. This result is not only permitted but is required by §11255 GC.
In conclusion, we emphasize the fact that we do not now determine the right of the appellant to subrogation or the rights of the parties in the pending litigation in any respect. We are holding, merely, that the parties are entitled to have an adjudication of their claims. An adjudication on merits off: the cause will depend upon the issues which may be raised upon the allowance of the filing of a cross-petition and the' evidence which may be adduced in support of the respective-claims of the parties.
The judgment of the Municipal Court is therefore reversed and the cause remanded with instructions to allow the filing of the answer and cross-petition and for further proceedings according to law.
MORGAN, J, concurs. SKEEL, PJ, dissents.