I dissent from the opinion of my Associates, for the reasons now indicated, upon the one point — the disposition of the case.
The interveners filed the following petition of intervention, which I set out in hæc verba for the purposes of my discussion of same, and of the action of the trial court in instructing a verdict, to wit:
"W. T. Waggoner v. La Rue Oil Association et al, Defendants. S. L. Green and D. R. Eakin, Interveners. No. 3205. In the District Court, Wilbarger County, Texas. To the Honorable Judge of Said Court: Now comes S. L. Green and D. R. Eakin, both residents of Wichita county, Tex., and leave of the court being first had and obtained, file this their intervention, and show the court:
"(1) That heretofore, on the 15th day of January, 1923, the plaintiff herein sold and assigned so much of his said claim as is in said petition described to one J. F. Davis of Electra, Wichita county, Tex., and that thereafter, and on the __ day of ______, 1923, the said J. F. Davis, for a valuable consideration, sold and assigned to the interveners herein an interest in the said debt set out in plaintiff's petition to an amount of $5,000. That your interveners are the owners and holders of said claim at the time of filing this intervention to the extent of $5,000 as aforesaid.
"(2) That the said J. F. Davis purchased of and from the plaintiff an interest as aforesaid in said plaintiff's claim to the extent of the last-mentioned sum, and paid therefor a valuable consideration, and that, as aforesaid, your interveners are now the owners and holders of said claim to the extent of $5,000.
"Wherefore, your interveners pray that upon a hearing hereof, they be decreed to be the owners of so much of the judgment, recovered by the plaintiff herein, as will be equivalent to the sum of $5,000, and for their costs herein expended and other relief."
Thereafter the plaintiff filed his first amended original petition, being substantially the same as his original petition, but with this addition:
"Plaintiff further alleges that in February, 1923, he assigned $5,000 of this debt to J. F. Davis of Electra, Tex., and that there is still due this plaintiff the balance of said debt of $1,424.50, and interest on all of said debt of *Page 628 $6,424.50 at the rate of 6 per cent. from January 1, 1921" — with prayer for judgment for said sum of $1,424.50, and interest, and for general relief.
The trial court, upon hearing the cause, instructed the jury to return a verdict in plaintiff's favor for the sum of $1,424.50, and interest, and that interveners recover nothing by their suit. Interveners, by their various propositions, in one form or another, allege such action of the trial court to be erroneous.
It will be seen that interveners' petition does not comply with the requirements of article 1820, V. S. C. S. 1914, which article is as follows:
"The pleading of an intervener shall conform to the requirements of pleadings on the part of plaintiff and defendant, respectively, so far as they may be applicable."
Interveners, by their supplemental plea of intervention, do not strengthen their original pleading, as such supplemental pleading is only for the purpose of replying to matters set up in defendants' answer.
The rule that every issuable fact must be alleged in pleading in order to admit necessary evidence in support of it (Pacific Express Co. v. Darnell Bros., 62 Tex. 639; Val Alstyne v. Bertrand, 15 Tex. 177) requires that the pleading by interveners should state the issuable facts in order to entitle them to recover, and their pleading not doing so, and they not even adopting plaintiff's petition, no ground for recovery is shown as against the defendants at least. The interveners' petition does not name any party defendant against whom a judgment is sought, unless by implication it could be said that they pray for judgment against the plaintiff. Their prayer is that —
"They be decreed to be the owners of so much of the judgment recovered by plaintiff herein, as will be equivalent to the sum of $5,000.00, and for their costs herein expended, and other relief."
They nowhere in such pleading name any party against whom judgment is sought. If they are seeking judgment against the plaintiff or against the defendants they do not say so.
While Green and Eakin, as interveners, occupy the position of both plaintiffs and defendants, this applies to their right to recover as plaintiffs, and to defend as defendants. But one who intervenes must have due regard to the rules of practice that the suit between the original parties shall not be unnecessarily delayed; otherwise the intervention may be considered in the nature of a new suit. Fleming v. Seeligson Ellis, 57 Tex. 524, 533. In the case of Whitman v. Willis Bro.,51 Tex. 421, 425, the Supreme Court says:
"Although due regard should be had to advantages of the proceeding by intervention in preventing a multiplicity of suits, yet we should also, as far as practicable, guard against its disadvantages. It is a practice liable to abuse, has a tendency to multiply the issues, imposes frequently great additional labor and responsibility upon the presiding judges below * * * and tends to confusion in the trial of causes."
This being the attitude of our Supreme Court towards interveners and interpleaded parties, I cannot consent to the proposition that an intervener, whose pleading is so defective as not to show a cause of action or the relief sought by him, can intervene in a suit with such pleadings and, when he loses, by taking refuge in an appellate court, have his case reversed, enabling him to replead, and thus delay the disposition of the case.
I am aware that our Supreme Court, this court, and other Courts of Civil Appeals have approved the rule for reversal of cases, as done by the majority in this case, where the appellant was a plaintiff or a defendant, and while I acknowledge the authority of the decisions cited by the majority, I enter my protest to the holding and respectfully dissent from the application of such rule in behalf of an intervener, who thus delays the disposition of the case by the filing of a petition for intervention, which is wholly lacking in the essentials of a petition, answer, or crossaction.
I am of the opinion this case should be affirmed because of the lack of the necessary pleading on the part of interveners. *Page 629