Page:Federal Reporter, 1st Series, Volume 10.djvu/416

 404 FEDERAL REPORTER. �The manner of the intervention is provided by the same Code, § 2685, as follows: �" The intervention shall be by petition, which must set forth the facts on which the intervenor resta, and all tiie pleadings therein sJiall he governed by the same principles provided for in tJiis chapter. But if such petition is filed during the terrn.the court .sliall direct the time in which ananswer shall be filed thereto." �No action by the court seems to be necessary to an intervention. The party who intervenes appears to have the same right to file bis petition of intervention that the original plaintiflE bad to commence bis suit. Tbere is no provision for obtaining leave of court, and as he may file bis petition at any time, "either before or after issue bas been joined in the cause," it is clear that he may file it during a vacation, and therefore necessarily •without leave of court. If filed during term the court shall direct the time in which the answer shall be filed. This is upon the supposition that the adverse parties are present, and are advised of the filing. If filed in vacation there is no provision as to the time of answering, except that it shall be governed by the rules prescribed for pleading in other cases. I think the intervenors correctly construed this provision as authorizing the service of notice to the adverse parties requiring an answer at the next term as in cases of original suits. This ruling is not in conflict with anything to be found in the case of Barkdull v. Callanan, 33 lowa, 391. In that case a petition of intervention was filed in vaca- tion, and the court distinetly say that such filing was "authorized by section 2932 of the Ee vision," which is the same as section 2685 of the Code of 1 873, above qaoted. The petition for intervention was afterwards, upon notice, stricken out, and leave to refile was refused. The court say: "We cannot determine the correotness of this ruling, for na exception was taken to it." Tbere was a motion for change of venue, which was overruled; and the court say, properly, "because her petition of intervention bad been stricken from the filesi" and she was, therefore, not a party. The case does not bold that leave of court is necessary to the filing of a petition of intervention, but, on the contrary, bolds that such a petition may be filed in vacation, and therefore impliedly holds that it may be done without such leave. �A question is made as to whether it was necessary for intervenors to present their petition for removal to the state court. If this were a new question I sbould have grave doubts upon it; but it seems to be settled that the filing of a proper petition in the state court ip«o ��� �