Allen v. Mitchell , 143 Ga. 476 ( 1915 )

Beck, J.

(After stating the foregoing facts.) The plaintiffs in error, who sought to have themselves made parties defendant in the court below, show clearly an interest in the suit. While they would not be concluded by the verdict in this ease, they were legally entitled, under the showing which they made, to be made parties defendant and to have the rights which they set up adjudicated in the equitable suit which the petitioners were prosecuting against the municipality. The petitioners had voluntarily gone into a court of equity and invoked there a verdict and decree establishing their contention that the alley in question was a private alley. The municipality against which the suit was brought filed pleadings putting in issue this contention of the petitioners. The plaintiffs in error, who sought the right to intervene in the court below, had some interest in common with the municipality. They were interested directly in having the alley declared one open for the use of the public, or at least to abutting owners who use it as a way of ingress and egress to and from their property, and they had a right to join as parties defendant in the litigation over the question made. They might have stood by and have allowed the city to contest the rights of the plaintiffs as asserted in their petition, but they had also a right to take part in the legal fight which the plaintiffs had precipitated. They might well have thought that the contest would be waged more vigorously against the plaintiffs if they were permitted to maintain their own side of the question. It would seem that subsequent events justify this view. Our code provides that “all persons interested in the litigation should be parties to proceedings for equitable relief.”’ Civil Code, § 5417. Some exceptions to this rule are stated in the section referred to; but it is not necessary to consider them, as the parties here fall within none of the exceptions. In equity it is the general practice to permit strangers to a litigation, who claim and show an interest in such a matter, to intervene and assert and have established rights which would be affected by the decree in the case. 11 Enc. PI. & Pr. 498 et seq. The broad rule laid down in the work last cited has probably been to a certain extent deduced from judicial construction of statutes in certain States in reference to the subject of intervention, and may be somewhat broader than the rule in this State; but under our code provision quoted above, the rule here is not so narrow as to exclude parties showing a direct interest in the subject-matter of the suit, which is set up by the plaintiffs in error here. Generally a court of equity will extend to one who is not a party to the bill the privilege of becoming a party, at his own instance, when from the case made it appears that the ends of justice would be subserved by it. Phillips v. Wesson, 16 Ga. 137; Blaisdell v. Bohr, 68 Ga. 56.

The fact that the municipality, subsequently to the refusal of the court to allow plaintiffs in error to intervene and be made parties, dismissed the plea and demurrer which had been filed, did not affect the rights of the complaining parties. They sought to become parties defendant before the municipality had dismissed its plea and demurrer. They adopted the plea of the municipality as their own, and showed in'their written application to the court an interest in the subject of the suit. The verdict and decree complained of must be set aside, and the plaintiffs in error here be afforded the opportunity of contesting the petitioners’ right to that decree.

Judgment reversed.

All the Justices concur, except Fish, Q. J., absent.