OFFICERS REMOVAL-RIGHT TO NOTICE. -Removal from office for cause cannot take place without notice to the accused officer: State v. Walbridge, 119 Mo. 383; 41 Am. St. Rep. 663, and note; Attorney General v. Jochim, 99 Mich. 358; 41 Am. St. Rep. 606. Where an officer is appointed for a fixed term, and the power of removal is not expressly declared by law to be discretionary, he cannot be removed except for cause, and, when cause must be assigned for his removal, he is entitled to notice and a chance to defend: Hallgren v. Campbell, 82 Mich. 255; 21 Am. St. Rep. 557, and note; People v. Stuart, 74 Mich. 411; 16 Am. St. Rep. 644, and note.

- Mandamus is

MANDAMUS TO RESTORE IMPROPERLY OUSTED Officer. the proper action to restore an officer to an office from which he has been illegally ousted, whether by removal or suspension: Metsker v. Neally, 41 Kan. 122; 13 Am. St. Rep. 269, and note. This subject is further discussed. in the extended note to State v. Dunn, 12 Am. Dec. 28-31.

MOCLURG V. STATE BINDERY COMPANY.

[3 SOUTH DAKOTA, 362.]

INTERVENTION.-AN ASSIGNee for the BENEFIT OF CREDITORS of an insolvent corporation has no right to intervene in an action pending against the corporation at the date of the assignment if his only purpose is to contest the liability of the assignor.

INTERVENTION. THE INTEREST IN THE MATTER IN LITIGATION WHICH WILL ENTITLE A PARTY TO INTERVENE in an action must be that created by a claim to the demand, or some part thereof, or a claim to a lien on the property or some part thereof, which is the subject of the litigation.

Peacock & March, for the appellant.

Horner & Stewart, for the respondent.

363 KELLAM, J. In September, 1890, the respondents brought an action against the defendant, the State Bindery Company, a corporation under the laws of the state, upon an alleged indebtedness on account. The defendant company answered, and, while the case was at issue and pending, the defendant company made a general assignment for the benefit of its creditors to the appellant, King. As such assignee he applied to the circuit court, in which such action against his assignor was pending, for leave to intervene for the pur pose of defending against such action. Such petition was denied, and he appeals. There are no peculiar facts in this case. It presents the single question whether the assignee of an insolvent corporation has the legal right to intervene in an action against such corporation for the purpose of contesting its liability. In Gale v. Shillock, 4 Dak. 182, the ter

ritorial supreme court, and in Yetzer v. Young, 3 S. Dak. 263, this court held that, to entitle a party to intervene under section 4886 of the Compiled Laws, "the interest in the matter in litigation" must be that created by a claim to the demand, or some part thereof, or a claim to a lien upon the property, or some part thereof, which is the subject of the litigation. In this the subject of litigation is not property at all, but the personal liability of the defendant corporation 364 for goods alleged to have been sold to it. The corporation had answered on the merits, and was presumably itself looking after its defense. By assigning its property it did not surrender its corporate existence or its individuality. It was the same corporation as before, with the right to sue and defend. It still had, or might have, a board of directors, with a will and a policy of its own. It might prefer to conduct its own defense against this claimed liability, with neither help nor interference from the assignee. In this case there is nothing to indicate that the defendant corporation and the assignee were not acting harmoniously, but to hold that appellant had a right to intervene upon the simple ground that he was assignee would give such right to the assignee in every case. He might assert it even against the protest of the assignor. The authorities cited by appellant's counsel are not controlling. They are all cases where the immediate subject of the controversy was property. In such case the assignee may intervene, because by the assignment he becomes the custodian of all the assignor's property. The assignor expressly transfers it to him, and he is charged with the duty of taking, holding, and protecting it, but he neither assumes, nor does the law impose upon him, any obligation to protect the corporation itself. He merely takes its assets for collection and distribution. The corporation and its officers remain, with all the powers with which the statute has clothed them, the same after the assignment as before: Burrill on Assignment, 5th ed., sec. 299; Hurlbut v. Carter, 21 Barb. 221. In respect to the right of an assignee to intervene to defend an action against his assignor, we discover no reason for distinguishing between assignments by corporations and assignments by individuals. In either case the assignee has no direct interest in whether or not a judg ment is rendered against his assignor. He is concerned only when the property which he represents is attacked or sought to be appropriated. He may defend that when so attacked,

for he is its guardian, but he is not the guardian of the person or the legal rights of his assignor. Appellant makes his contention upon the theory tnat the rendition of judgment against the assignor definitely establishes another claim to be paid out of the assigned estate, but this is not necessarily 60. It certainly 365 would not be so in case of a collusive judgment between the plaintiffs and the assignor, and aside from this danger we see no more reason to apprehend an unsuccessful defense, if conducted by the defendant itself, than if conducted by the assignee.

The facts set forth in the answer of the assignor and in the proposed answer of the assignee, as a defense on the merits, are substantially the same, and the record attorneys are the same, but, if this action should result in establishing prima facie evidence of another claim against the assigned estate, the assignee would still not have such a direct interest in the matter now in litigation as would entitle him to intervene. The language of Mr. Justice Field in Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569, has been so often quoted as to have become familiar: "The interest which entitles a party to intervene in a suit between other parties must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment." Now, the matter in litigation here between the original parties is simply whether the defendant is indebted to the plaintiffs for goods. It is plain that this question-this "matter in litigation"-will be settled and ended by the judgment for one side or the other, but not until after that assuming that such judgment will be against defendant-after the "matter in litigation" is thus adjudicated and definitely settled and closed, can any question occur which affects the trust of the assignee. It is plain, therefore, that appellant is not directly interested in the "matter in litigation." Whether the claim against the defendant thus established by the decision of the "matter in litigation" shall be paid from the assigned estate is another and an independent question. The principle involved is much like that in Lewis v. Harwood, 28 Minn. 428, where subsequent attaching creditors sought to intervene to defend a then pending action against their debtor, in which his property had also been attached, on the ground that the alleged cause of action in the first suit was fraudulent. The intervenors there, as

AM. ST. REP., VOL. XLIV. -51

here, desired to prevent a judgment against the defendant, because they anticipated that such judgment would have to be paid out of property to which they were looking for payment of their claims, but 366 the court held that their interest was not the direct interest in the matter in litigation contemplated by the statute: See, also, as bearing upon this question, Gale v. Shillock, 4 Dak. 182, appealed to United States supreme court, and reported in Smith v. Gale, 144 U. S. 509; Harlan v. Eureka Min. Co., 10 Nev. 92; Limberg v. Higginbotham, 11 Col. 316. Whether or not in any case there might be extraordinary circumstances which would entitle an assignee to intervene in a purely personal action against his assignor, it is not necessary now to consider. No unusual facts are alleged here. The right is claimed by appellant solely on the ground that he is assignee. We think the action of the circuit court denying appellant's petition to intervene was right, and it is affirmed. All the judges concurring.

INTERVENTION-INTEREST NECESSARY TO ENTITLE THIRD PARTY TO PRIVILEGE OF.-The interest which entitles a party to intervene in an action between other parties must be in the matter in litigation in the suit as originally brought, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal effect of the judgment therein: Dennis v. Spencer, 51 Minn. 259; 38 Am. St. Rep. 499, and note. This subject is discussed at length in the notes to Lacroix v. Menard, 15 Am. Dec. 162, and Brown v. Saul, 16 Am. Dec. 178.

4

EVENSON V. WEBSTER.

[3 SOUTH DAKOTA, 882.]

APPELLATE PROCEDURE.-One who relies upon the insufficiency of the evi. dence to sustain the verdict of a jury or the finding of a court must move for a new trial. Otherwise a supreme court cannot review the evidence upon appeal.

DEED TO CONVEY, WHAT IS SUFFICIENT.-A paper commencing with a statement that it is a will between S. S. and H. L., by which S. 8. declares that he has made agreement with H. L. that the latter is to take care of him until his death day, and that S. S. gives H. L all his goods, chattels, and real estate, except fifty dollars, which he leaves to G. J., and that H. L. is to pay G. J. when the land is sold, or within five years from date, is, when dated and signed by S. S., a sufficient conveyance of his real property.

A DEED CONSISTS OF the name of the parties, the consideration, a descrip

tion of the subject granted, the quantity of the interest conveyed, and,

lastly, the conditions, reservations, or covenants, if any there be. Any words indicating an intention to transfer the estate, interest, or claim of the grantor are sufficient to constitute a deed.

▲ CONVEYANCE UPON CONDITIONS SUBSEQUENT passes the title to the grantee, subject to be divested by the failure to perform the condi. tions. ESTOPPEL.-IF, AFTER THE EXECUTION of a paper styled therein as a will, but purporting to give all the property of the signer to another person, a sister of the signer executes another paper that she will not make any claim of the property or estate of such signer, she is estopped from thereafter asserting any claim of title to such property.

Palmer & Rogde, for the appellant.

Davis, Lyon & Gates, for the respondent.

384 CORSON, J. This was an action brought by the plaintiff as the sister and only heir of Staale Simonson, deceased, to recover the possession of one hundred and sixty acres of land in Minnehaha county, of which it is alleged said Simonson died seised. The case was tried by the court without a jury, and, upon the facts found by the court, and its conclusions of law, judgment was rendered for the defendant. From this judgment the plaintiff appeals.

Numerous errors are assigned, nearly all of which specify, as grounds of error, the insufficiency of the evidence to justify the findings. Counsel for defendant and respondent object to the consideration by this court of the errors assigned as to the insufficiency of the evidence to sustain the findings upon the grounds that no motion for a new trial was made in the trial court, and that, by reason of the failure of appellant to move for a new trial, this court is precluded from reviewing the evidence on this appeal. 385 It does not appear from the abstract that a motion for a new trial was made in the court below, and, in the absence of such showing, this court will assume that no such motion was made. In the case of Pierce v. Manning, 2 S. Dak. 517, this court, on a full consideration and careful review of the authorities, held that when a party relies upon the error that the evidence is insufficient to justify the verdict or findings of a court, whether the case is tried by the court or a jury, he must move for a new trial in the trial court before this court will be authorized to review the evidence to determine its sufficiency to justify the verdict or findings of the court. The rule as laid down in that decision precludes us from reviewing the evidence in a case appealed to this court when no motion for a new trial has been made in the court below. Upon the