William Brathwaite, Plaintiff and Appellant, v. Henry C. Aikin, Harvey Harris, as Administrator, etc., Thomas C. Power and John W. Power, under the name and style of Benton Linz, Defendants, William Rea and George F. Robinson, copartners, etc., J. C. Kay and Woodruff McKnight, copartners, etc., A. W. Cadman and Joseph McC. Biggert, Intervenors and Respondents.
1. Intervention to Obtain Judgment Against Defendant—Equities Between Plaintiff and Intervenor.
Where an intervention complaint was framed on the theory only of co-operation by the intervenors with plaintiff in the effort to secure judgment against defendants, and the prayer for relief merely requested a payment of the money into the hands of a person to be designated by the court, no claim in the complaint or on the trial being made that the rights of the plaintiff and the intervenors, as between themselves, were to be adjusted in the action, but the verdict being a joint verdict, in favor of the plaintiff and intervenors, for the amount of the recovery, held error to award tointervenors any specific portion of the recovery against defendants, there having been no adjustment of the equities between plaintiff and intervenors. Such portion of the judgment reversed, with directions that rights of plaintiff and intervenor be settled as between themselves.
(Opinion Filed January 15, 1891.)
APPEAL from district court, Burleigh county; Hon. Wm. H. Winchester, Judge.
George W. Newton, for appellant; Louis Hanitch, for intervenors.
Corliss, C. J. By acomplaint in intervention the plaintiff in the original action is sought to be made defendant as to the intervenors. The action has for its object the recovery of freight for the transportation of certain army stores by water from Bismarck, Dak., to Ft. Buford, Mont. The judgment, so far as it fixed the liability of defendants, has been affirmed. See Braithwaite v. Power, ante, 455, (decided at thisterm.) The plaintiff now assails that portion of it which awards to the intervenors the greater share of the recovery. The most that ap-
