Stirn v. Radio-Keith-Orpheum Corp.

Urner, J., delivered the opinion of the Court. A stockholder of the appellee corporation, suing solely in his own behalf, filed a bill in equity against it for an injunction and a receivership on the ground of alleged mismanagement and the invalidity of certain amendments of its charter. Shortly after the filing of the bill, several other stockholders were joined as plaintiffs in the suit under orders of court passed upon their respective petitions. About three months; later, on the day before the case was to be finally heard on bill and answer, the appellant filed simultaneous petitions for leave to intervene as an additional plaintiff, and to take-testimony upon the issues raised by the pleadings.

The defendant objected to the proposed intervention, and the appellant’s petition to that end was denied by an order of court,, “without prejudice to any rights the petitioner may have to bring an independent suit either at law or in equity.” He has appealed from that order, and from a decree subsequently passed, after the final hearing, by which the bill of complaint was dismissed. The principal objections urged against the application of the appellant to be made a co-plaintiff in the case were that his petition did not sufficiently support his asserted right to intervene, and that the purpose of his intervention, and coincident application for leave to take testimony at a later time, was to change the procedural situation into which the case had been brought for final hearing on bill and answer. ⁴⁰⁰ In declining to admit the appellant as a party at the time and for the purpose shown by the record, the court below acted in the exercise of a competent and sound discretion. Its order denying the appellant’s request to be made a party did not adjudicate any of his rights, but expressly left him free to bring an independent suit. Because of its discretionary nature and its lack of finality, the order was, in a double aspect, not appealable.

In Alexander v. Maryland Trust Co., 106 Md. 170, 189 , 66 A. 836 , the refusal of the lower court to permit the appellant to intervene and take testimony in an equity suit was held to be within the court’s discretion, and his appeal was dismissed for that reason. The opinion of the Supreme Court in Credits Commutation Co. v. United States, 177 U. S. 311, 315 , 20 S. Ct. 636, 637 , 44 L. Ed. 782, 785 , was, in part, as follows: “The view