Page:North Dakota Reports (vol. 3).pdf/420

 any of the proceeds of the judgment, but that they were indebted to the defendant because of any matters growing out of the transaction. The theory of an intervention is that the interveners become plaintiffs to the extent of their intervention against the parties to the original action against whom their claim is made. It is an action within an action. We are clear that, when these interveners sought to recover this freight money as against Braithwaite, they opened for final determination all matters which could have been litigated between the parties had they brought an action to compel him to account for and pay over the money after he had collected it. The code seems to settle this point. In case of intervention the parties to the action against whom the interveners make their claim are allowed to answer or demur to the complaint as if it were an original complaint. Comp. Laws, § 4886. He may therefore not only go into the case fully in his answer, but he may do what any other defendant may do, i. e. set up a counterclaim, and recover an affirmative judgment. The hardship, if not the injustice, of any other rule, is apparent. Were defendant not allowed to have judgment against the interveners, then he might be compelled to litigate the same question against them twice to secure relief. It is only by an examination into all matters between these parties that it can be determined whether the interveners are entitled to the proceeds of the judgment or of any portion thereof.. Such an investigation might disclose the fact that they had been overpaid through mistake or fraud. Must the defendant, after showing that they were indebted to him in a certain sum, sec the interveners dismissed by the court from the jurisdiction without his obtaining any redress from the court, and be forced to sue them, and travel over the same weary, tedious, and expensive route to secure relief? It would be a reproach to the administration of justice to so sacrifice substance to form, without a single reason to justify or excuse the sacrifice. When persons intervene in an action, they assume the position of plaintiffs against those who are called up to answer their complaint in intervention, and they are subject to all the rules which regulate