Page:North Dakota Reports (vol. 1).pdf/502

 dereliction of duty as trustee, or that he is not abundantly able to respond to the beneficiaries for all moneys to which they may be entitled under this trust. There was a good reason for intervenors stepping into the case, aside from the purpose of litigating their exact rights to the fund as between themselves and plaintiff. Here was an important controversy, in which they were largely interested financially, and it was entirely natural that they should wish to have some voice in and control over the prosecution of the case. The averments of the complaint and the prayer for relief fully warranted the belief that such was the sole motive of the intervention. Had it been the design of the parties to settle by their intervention all their conflicting rights, the complaint in intervention would naturally have averred how much was due upon their respective debts, to secure which this trust was created. These were first to be paid out of the earnings of the boat. It is averred that they have not been paid, for it is stated that the intervenors have never received any portion of the earnings of the vessel. But it is nowhere alleged how much these claims amount to. Had the object of the intervention been to have a full settlement of the trust with respect to this fund, the amount of the claims first payable out of such fund under the trust would have been set forth in the complaint in intervention.

The prayer for relief does not necessarily control the scope of the relief that will be granted, but it certainly does throw light upon the purpose of the pleader, especially when in accord with the spirit of the pleading. There is no prayer for an accounting; there is no request for judgment in favor of the intervenors against either the defendants or the plaintiff. On the contrary, the intervenors expressly negative such a theory of their intervention by demanding that the money be paid to Biggert, or to some proper person to be designated by the court, to be applied as provided for in said contract. Such person and not the court, was to distribute the fund. After the intervention had been proceeded with on this theory down to the application for judgment, it was not competent for intervenors to make a sudden change of front to the surprise and disadvantage of plaintiff. It is evident that a full accouting between the parties