Yetzer v. Young

Citations

• 3 S.D. 263
• 52 N.W. 1054
• 1892 S.D. LEXIS 63

Syllabus

<p>1. To entitle a party to intervene, under section 4886, Comp. Laws, hie interest must be that created by a claim to the demand or some part thereof, or a claim to a lien upon the property or some part thereof, which is the subject of the litigation.</p> <p>2. In an action by the holder of a chattel mortgage against the mortgagor for the possession of the mortgaged property, a mere judgment creditor, without lien by levy of execution or attachment, is not entitled to intervene for the purpose of showing the mortgage paid or fraudulent.</p> <p>3. Where an execution is returned by the sheriff with his certificate showing a levy, and a release and restoration of the property because sub- . ject to chattel mortgage which the judgment creditor refused to pay, a second execution may be issued by the clerk, and section 5147, Oomp. Laws, does not apply to such case.</p> <p>4. Parol evidence of the sheriff is not competent to prove a levy, but, if such evidence is offered and received without objection, its ineompetency is waived.</p> <p>5. Where the intervener was allowed a show without objection that an execution was issued upon her judgment, levied upon the property, the possession of which, is the subject of the litigation between plaintiff and defendant, and tliat such property was then in the possession of the sheriff under such levy, the court ought not, after the evidence is all in and the trial closed, to strike out the evidence of such facts, either because incompetent or not pleaded, but should allow intervener’s motion to amend her jfieading to correspond with the facts proved.</p> <p>(Syllabus by the Court.</p>