In the foregoing opinion we referred to the judgment sought to be reviewed as one denying an application to intervene. This is not strictly correct. Without setting forth all the numerous and somewhat confusing motions and orders, it is more accurate to say that, in legal effect, the action particularly complained of is an order striking the trustee's petition to be allowed to intervene and proposed answer, upon a motion attacking their sufficiency, both as a showing of a right to intervene and as a defense to the cause of action set forth in the complaint.
[2] The point is made by the trustee that, being self-executing, he could not supersede the same. He cites 3 C.J. "Appeal and Error," § 1400, to the effect that it is generally held that self-executing judgments are not within the supersedeas statute, because there is nothing upon which the stay bond can operate in such a case. The whole matter, however, is regulated by statute in this jurisdiction. Section 17 of chapter 43, Laws of 1917, provides that there shall be no supersedeas or stay of execution unless the conditions as to filing bond are complied with. It also provides that, if the decision appealed from is for a recovery other than a fixed amount of money, the district court shall fix the amount of bond, and specifies the condition of the bond in such case. It further provides that, upon filing the bond required, there shall be a stay *Page 451 of proceedings in the case until the same is finally determined in the appellate court. Under the terms of this statute, it would appear that all final judgments may be superseded, and, when so superseded, all further proceedings in the case are stayed. That the judgment is final we have assumed for the purposes of the decision. The trustee so contends. If interlocutory, he would have no standing, as his writ of error would be too late.
Counsel for the trustee argue that the statute could not apply in a case like this because there was no "recovery" in the sense in which the word is used in the section. This is a paplpable error. The plaintiff certainly recovered a judgment against the trustee that he was not entitled to intervene. We conclude, therefore, that the trustee might have superseded the judgment striking his intervention. Had he done so, no judgment on the notes could have been rendered.
[3] 2. Counsel for the trustee does not now contend that the plaintiff was without right to proceed to final judgment or even to enforce the judgment by execution. In fact, he expressly concedes such right. He contends, however, that, should he succeed in reversing the judgment striking his intervention, and should he succeed in establishing the defense set up therein, the trustee will be entitled to the usual restitution from the plaintiff of the proceeds of the judgment received by him. Hence, he argues, we cannot dismiss the appeal on the ground that the question has become moot because no relief can be afforded the trustee. Counsel cites 2 R.C.L. "Appeal and Error," § 223, and several cases. This text and these cases all refer to interlocutory judgments upon which the final judgment in the case depends for its correctness. None are cases involving a denial of the right to intervene, and none have been cited or found by us.
In approaching this question, it is well to remember that the right to intervene in the action at law by a third party is a statutory right, and can be secured *Page 452 only in accordance with the terms of the statute. Our statute is sections 4296 — 4298, Code 1915. Section 4296 provides that the intervention must be made before the trial begins, and must be by a person who has an interest in the matter in litigation, in the success of either of the parties, or against both. By section 4298 it is provided that the intervention is to be by petition setting up the facts relied upon, and by section 4297 the intervention is to be determined at the same time that the main case is decided, and that the intervener shall have no right to delay the case. It is thus seen that the right to intervene is not absolute, but is conditioned as to time, and must not delay the trial. The proceeding is collateral to the main case.
In the present case, final judgment on the notes might be had as well without the intervention as with it. By the judgment striking the intervention, no right was established in favor of the plaintiff upon which the money judgment depended for its validity, or which was embodied therein. In such a case a reversal of that judgment will have no effect upon the money judgment, and no relief can be afforded the trustee here. He had his remedy by appeal and supersedeas, and he failed to avail himself of the latter, and is therefore without a remedy in this court.
There is another consideration which prevents this court from affording the trustee any relief. After the striking of his petition and answer, the trustee moved to set aside the default in order that he might file an amended petition and answer, asking for 5 days to plead further as an intervener. In view of the provision of the statute that the intervener shall have no right to delay the hearing of the case, it was at least within the court's discretion to overrule this motion.
[4] Another consideration is fatal to the writ of error. A re-examination of the files discloses the astonishing fact that there is no writ of error directed to the judgment complained of. In the application for the writ, the judgment, to which a *Page 453 writ of error was sought, is pointed out as a judgment refusing the plaintiff in error leave to intervene and to file an answer in the cause, and striking from the files said petition and answer. This application was filed on behalf of John S. Clark, trustee in bankruptcy. The writ of error issued in response to that application, however, is directed to the main judgment in the case upon the notes sued on and is for the correction of error alleged to have intervened to the damage of the Rosenwald Realty Company; no mention therein being made of the judgment on intervention, or of error to the damage of John S. Clark, trustee, the plaintiff in error. It thus appears that, while we have devoted considerable time to the examination of the question heretofore presented in the case, we have never had before us the judgment denying the right to intervene. The proceeding should have been long ago dismissed for this reason. There is no writ of error here in behalf of John S. Clark, trustee in bankruptcy, who is the complaining party.
It follows that the writ of error should, as we heretofore held, be dismissed, and it is so ordered.
PARKER, C.J., and BICKLEY, J., concur.