I dissent. I think the majority opinion sanctifies procedure at the sacrifice of substance. The precise question before us is, Did the court err in denying plaintiff's motion? That motion was in the alternative. It sought an order requiring Anderson to deposit the full sum of $935.91 or to dismiss the cross-complaint upon the ground that it did not state facts sufficient to constitute a cause of action. As to the first alternative it is sufficient to say that plaintiff only makes a claim to $437 and hence has no standing in court to require the deposit of $935.91 even if the proceeding be under section 9087, Revised Codes.
As to the second point, the cross-complaint was sufficient under section 9090 in order to obtain a complete determination of the controversy. While the more orderly procedure under that *Page 206 section would have been to obtain a court order bringing in the new parties, yet that is not necessary where, as here, they voluntarily appeared in the action without objection on that point or otherwise.
Furthermore, section 9151 as interpreted in Zunchich v.Security Building etc. Assn., 85 Mont. 341, 278 P. 1011, authorizes a cross-complaint to bring in new parties when defendant does not avail himself of the benefit of section 9087 by depositing the money and obtaining a discharge from liability to either party. It should be noted here that Anderson did not seek an order discharging him from liability to either plaintiff or the LaGrands' defendants in the cross-complaint but remained in the action and hence subject to any judgment that the court saw fit to impose against him. He should have the right to have plaintiff and the defendants in the cross-complaint litigate their respective rights so that he would not be subjected to two actions for the same money. This he may do without depositing the money where, as here, he remained in the case and subjected himself to whatever judgment the court saw fit to pronounce in the light of the facts.
I think the district court was right in denying the motion and that the writ applied for should be denied. *Page 207