Tredway v. Sioux City & Pacific R.

39 Iowa 663

Opinion

Cole, J.

In-the absence of any showing or excuse for the failure to intervene, and thereby secure the right to defend in the action by the railroad company against the county, we do not see how this plaintiff can now assert his right, even if he has any. For aught that appears this plaintiff was fully cognizant of the alleged fraudulent practices while they were being enacted; and was present and witnessed the conduct of the suits brought by the railroad company, for the specific performance. A party may not sit quietly by and allow an adjudication to be made between the proper parties, and after finding it adverse to his interest, demand that the court set aside its solemn judgment, and re-try the cause in order that he may assert the same claim in his own way. If such negligence should be sanctioned there would be no end to litigation. Whether the plaintiff alleges facts sufficient to entitle him to any relief, even if he had been diligent, we need not determine; but see, Cornell College v. Iowa County, 32 Iowa, 520, and cases there cited.

Affirmed.