The opinion of the Court was delivered by
Todd, J.W. G. Wyly, a third person, appeals from a judgment dismissing this suit by the consent of the parties thereto.
The bill of exceptions found in the record shows that before the decree of dismissal was rendered, the appellant offered to file an intervention in the cause and, at the same time, stated that he had already prepared his petition of intervention, which was then in his office, and asked a delay of fifteen minutes to go to his office and procure the same, which request was refused him and the dismissal of the suit thereupon followed.
The bill also shows that the appellant alleged a substantial interest in the litigation embraced in the pending suit, to further which, was the object of his proposed intervention; but with the nature of this interest and whether sufficient or not to entitle him to intervene, we, at present, have nothing to do, as this is a question which was not jrassed on by the lower court — that court refusing to allow the intervention substantially on the ground that the application came too late and that the parties were then present in court desiring to dismiss the suit.
We think the court should have granted the short-delay asked for to enable the appellant to procure and file his petition of intervention. Whether it should have been thereafter dismissed on an exception as to the character of the- interest shown, or other cause, was a matter for the judge’s subsequent determination.
If the application to intervene is seasonably made, the judge cannot refuse to permit the petition to be filed, C. P. 394. Tf for any cause it should not be allowed, or the intervenor has no right to be heard upon his demands, his petition, as in other cases, should be dismissed, upon a proper f-xception urged against it by the party opposing it.
Tt is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and, it is further ordered, adjudged and decreed that- the case be remanded and reinstated on the docket of the court below, and the appellant, W. G. Wyly, allowed to present and file his' petition of intervention, and the case to be proceeded with according to law, appellees to pay cost of appeal.