I do not believe that plaintiff, Brackman, by demurring to the complaint in intervention waived his right to stand upon his motion to strike which raised the jurisdictional right of the *Page 428 court to hear intervenors. The rule is well settled that jurisdiction of the court cannot be conferred by consent. Of course, Brackman could have waived the right to object to the court's jurisdiction over him but he is not raising that point. He submitted to the jurisdiction of the court over him when he filed his complaint. The question here is, has he taken such action that the court must allow the intervenors to remain in the case whether they have a sufficient interest in the case to be heard or not. I do not think so.
In 39 Am. Jur., p. 949, it is said: "The petition or complaint may also be assailed by demurrer on the same grounds as any other pleading, and on the further ground that the matters alleged do not warrant an intervention, and it may, like other complaints, be so insufficient that neither a motion to strike out nor a demurrer is required, and such insufficiency may be available at any stage of the proceeding by directing the attention of the court thereto, and doubtless may be suggested and acted on by the court ex mero motu."
And in Brown v. Saul, 4 Mart., N.S., La., 434, 16 Am. Dec. 175, it is said: "But a total want of legal right in a suitor, in relation to the matters in litigation, ought to be taken into consideration and acted on by courts of justice, at any stage of a cause. They should not remain silent spectators of infringements of the true principles of laws, which they are appointed to administer."
I think the court of its own motion has the right to strike a complaint in intervention if the court thinks the intervenor has not a sufficient interest in the litigation to entitle him to intervene, even though the point is not raised by the litigants. I do not agree that the demurrer is inconsistent with the motion. It is in harmony with it. Both the motion and the demurrer question the sufficiency of the allegations of the complaint in intervention to show sufficient facts to entitle intervenors to intervene. In fact, when the cause is again considered by the judge of the trial court, entertaining the view that he does, he will be obliged to sustain the demurrer to the complaint. Intervenors, *Page 429 who have alleged everything that can be alleged showing their interest, will then be obliged to come to this court again to have the point determined which is now before the court.
Under the rule above quoted from 39 Am. Jur., p. 949, the court has a sufficient interest in the conduct of its own proceedings to keep out parties whom it thinks have not a sufficient interest to intervene. The case of Cooke v. Myers,86 Mont. 423, 283 P. 1114, presented but an irregularity which the court held was waived by demurring to the amended complaint. It was not a case having to do with a jurisdictional matter. The same is true of the case of Paramount Publix Corp. v. Boucher,93 Mont. 340, 19 P.2d 223. Other cases relied upon in the majority opinion are not analogous because they deal with the question as to whether a litigant can demur to a pleading or otherwise plead to it and still not subject himself to the jurisdiction of the court. That point is not involved here.
I think the motion to strike should be considered on its merits and that Brackman did not waive the right to stand upon it by demurring generally to the complaint in intervention. I think we should determine the point whether the intervenors have a sufficient interest in the subject matter of the action to entitle them to come into the case by intervention.