Page:Federal Reporter, 1st Series, Volume 10.djvu/415

IN EB lOWA & MINNESOTA OONSTHUCTION 00. 403 �out notice to complainants. For the purposes of the present motion I sup- pose this must be taken as true. (3) The intervenors do net attack any final judgmentof the state court, but only the interlocutory orders made from time to time, and which, at thetime of the intervention, were still within the con- trol of the state court. �Another consideration, however, is still more conolusive of the question. The petition for removal is not based entirely upon the citizenship of the parties. It charges local prejudice, and prays removal upon that ground also. Now, if we consider the proceeding in the state court from the beginning as one suit, and also assume that the intervenors had notice, and were proper parties, still it is clear that there has neyer been a final trial or hearing, and that, therefore, the petition for removal, upon the ground of local prejudice, is in time, and perfectly good. It may be that, if these assumptions are found upon investigation to be correct, we may be constrained to hold the intervenors bound by some of the orders of which they complain, unless they can successfully attack them for fraud; but, however this may be, the light of removal is clear. We are not called upon, in passing upon that question, to inquire what the ultimate judgment maybe upon, the issues presented. It is enough that the parties are citizens of different states; that the amount involved exceeds $^00, exclusive of costs ; that the proper affidavit of prejudice is filed; and that the cause had not been finally tried or determined when the peti- tion for removal was filed. AU these conditions we find fulfilled, �It remains to consider the question whether the intervenors were parties to the suit in the state court, at the time they filed their peti- tion and bond for removal. I suppose the theory of the receiver of such creditors as sustain his action isthat the intervenors have been parties from the beginning by virtue of the publication of notice or sending thereof through the mails, or both. If this be so, that is the end of controversy on this point; but the intervenors deny this, and assert that they never were parties until they made themselves such by filing their petition of intervention; and upon this theory the counsel for the receiver insist that they had no right to intervene withoutleayeof court, which was not obtained, and that they were, therefore,, not parties. The right to intervene, under the Code of lowa, is given absolutely and withqut condition to "any person who has an interest in the litigation," whether he be interested in thesuo- cess of one or the: other party to the action, or against both. Code of:18|3,J.2C8i3., '_ ^ ^ , 'if_^.| ��� �