Bloom v. Waxman

B. BLOOM, Appellant, v. JACK WAXMAN et al., Defendants and Respondents; ANDRE WITIER, Intervener and Respondent.

COUNSEL

Mitchel S. Meyberg for Appellant.

Jack G. Schapiro for Defendants and Respondents.

Alexander W. Staples and Harold B. Pool for Intervener and Respondent.

OPINION

McCOMB, J.

May 17, 1937, plaintiff filed an action for declaratory relief in the superior court. September 2, 1937, Andre Witier was permitted to file a complaint in intervention. [48 Cal. App. 2d 647] June 29, 1939, judgment was rendered in favor of the plaintiff in intervention against plaintiff Bloom and others. Plaintiff urges that the judgment should be reversed for the reason that the plaintiff in intervention (respondent) had no right to intervene in the action.

[1] This is the sole question necessary for us to determine:

In the absence of an objection to the filing of a complaint in intervention, either by demurrer, motion to strike or other appropriate proceeding, may a party for the first time on appeal raise the objection that the order of the trial court permitting the intervention was improper?

This question must be answered in the negative. The law is established in California that in the absence of an objection in the trial court to an order permitting the filing of a complaint in intervention a party may not urge error in the making of such order for the first time on appeal. (People v. Reis, 76 Cal. 269, 273 [18 P. 309]; Smith v. Penny, 44 Cal. 161, 164; McKenty v. Gladwin, Hugg & Co., 10 Cal. 227, 228; County of Yuba v. Adams & Co., 7 Cal. 35; Carlin v. Masten, 118 Cal. App. 373, 375 [5 PaCal.2d 65].) Since it appears from the record in the instant case that plaintiff, after receiving notice of plaintiff in intervention's (respondent's) motion that he be permitted to intervene in the case, did not by motion or otherwise raise the objection in the trial court which he is now presenting in this court, the above rule is applicable and he is foreclosed from urging alleged error of the trial court in permitting the complaint in intervention to be filed.

For the foregoing reasons the judgment is affirmed.

Moore, P. J., and Wood (W. J.), J., concurred.