Ousley v. Curphey

Citations

• 95 Kan. 254
• 147 P. 1110
• 1915 Kan. LEXIS 203

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — ■Application to Compel City to Levy Tax to Pay Judgment — Application for Leave to Intervene Should Have Been Allowed. The assignee of a judgment against a city and a construction company — the latter being insolvent — ■ sued the city in mandamus to compel the levy of a tax to pay the judgment. Certain surety companies which had become surety on the construction company’s indemnifying bond to the city, and on its supersedeas bond on appeal, respectively • — the latter company being secured by a deposit of collateral —were by the other surety company sought to be made parties, and an application to intervene was made by such other company alleging that the plaintiff was merely the nominal holder of the judgment for the company which had signed the supersedeas bond, which company by collusion with him and with the construction company was attempting to cast on the applicant the burden of liability for the judgment. The court considered the evidence offered, denied the application, and issued an alternative writ from which the applicant and the city, which also asked that the surety companies be made parties, appeal. It is held that as to the application to intervene its denial was final and appealable, and that under the evidence such ruling was error requiring a reversal.</p> <p>2. Mandamus — Order Granting Alternative Writ — Not Appeal-able. The action being for a peremptory writ of mandamus, the order. granting an alternative writ is interlocutory and not appealable.</p> <p>3. Same — Third Parties May Intervene. The rule that in mandamus actions others than the original parties, who are interested in the matter or result, may properly be made parties — followed.</p>