¶1(dissenting). Being of the opinion that, ■if the trial court had- .been fully advised' -of the pending motion for intervention, such court could not rightfully have refused to--dismiss the action upon plaintiff’s motion, I dissent from the foregoing decision. This- court in Brettell v. Deffebach, 6 S. D. 21, 60 N. W. 167, pointed out the line bey'omd which, so- far as I am advised, aid courts-, and certainly this, court, have refused to go in opening u.p judgments at the behest of those not -parties to the actions. The party seeking the opening -of the judgment must toe one who w'oulid have ,a night to become a party by substitution or intervention and 'the judgment must be prejudicial to his claimed rights. Anderson was not a party to the -action when he moved the opening of this judgment. Under all authorities one seeking 'intervention' is- n'ct -a party until an order is made allowing intervention. The judgment of dismissal was in no respect prejudicial to Anderson. The distinction between the right of a plaintiff to dismiss where there is a person seeking intervention and his right to dismiss where he has brought an action, and' the defendant against wh'c-se protest he .is seeking such dismissal 'has counterclaimed, is too obvious to need elucidation.
40 S.D. 30
Schoniger v. Logan
Decided January 18, 1918
South Dakota Supreme Court · decided 1918-01-18
Hon. Alya E. Taylor, Judge. Action by William Soboniger and Augusta Schoniger, against Alma E. Eogan- and A. IT. -Maas, for cancellation of 'a contract for sale and conveyance of realty; defendant H. C. Anderson, intervening. From an order setting aside an order and judgment of dismissal of the action, and permitting defendant Anderson to intervene, plaintiffs appeal.
Cited by 2 later decisions — most recently September 2010
1 district · 1 state decisions
Relies on Brettell v. Deffebach
Good law ✅— No negative treatment on recordhow we know
Affirmed · Decided 1918-01-18
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