2 FEDERAL nmronrnn.
(3) that in the suit there is no controversy which is wholly between
citizens of different states, and which can be fully determined as be-
tween them.
The record shows that Stepath et al., by petition nled in the court
showing that they were lienholders against the defendant railroad
company, applied to the court for leave to intervene and litigate their
l alleged rights, and were refused by the court, and that thereafter, on
the next day, without leave, they filed their petition asserting their
claims against the defendant company, and contesting the lien and
alleged priority of the plaintiffsin;-the suit.
The question is whether an order of court was necessary before
they could~»be·· parties to the suit. We are referred to no provision
of the Texas Code which makes itnecessary for. the court to grant
leave before a party can intervene in a suit. We take it there is no
such provision. We are referred to 28 Tex. 50-1, (Smith v. Allen,)
where it is said that "it is believed that the practice has been to in-
tervene on yleave of t_he court ;" and referring to Eccles v. Hill, 13
Tex. 65-68. °The'court alisotsaidir “In a proper case the right of in-
.ervention, if deniedvin the court below, will be secured and enforced
in this court." These rulings are undoubtedly with reference to the
general practice in matters of intervention. But we understand that
this case stands upon a clear statutory right to intervene, without any
leave of court first had and obtained. The statute of the state which
- gives the plaintiffs the lienthey are seeking to enforce provides that,
"in all suits of this kind,Y’——that is, suits to enforce the laborer’s lien
against railroad companies,-"it shall not be necessary for the plain-
tiff to make other lienholders defendants thereto, but such lien-
holders may intervene and become parties thereto, and have their
respective rights adjusted and determined by the court." Acts 1879,
c. 12, p. 8 . A
Under this provision it seems to us that any lienholder would
have the right to intervene in such a suit as the plaintiffs instituted
without any leave of court; as much so as a defendant, when cited in
an ordinary, suit, has to answer without leave of the court. But,
however this may be, we have authority for holding that interven-
ors were proper parties to the litigation, and that as they had done
all they could to become parties, and had been wrongfully refused
the right by the state court, they were parties sufficient for the pur-
_ pose of removing the case, if otherwise they had the right to remove
the case. See Acts 1879, c. 12, supra, and two cases decided by
Justice Davis, in Dill. Hem. Causes, 41, 42, note.