Roberts

The appeal is from the judgment and from the order denying the motion of Hicks to vacate and set aside the judgment and denying to said Hicks permission to intervene.

The action is one brought under section 3414 of the Political Code for the purpose of deciding conflicting claims of the plaintiff and the defendant to purchase from the state certain swamp and overflowed lands near the town of Areata, in Humboldt County.

The judgment was rendered September 16, 1901. Motion to set aside judgment and to permit the said Edward S. Hicks to intervene was made on December 5,1901, and denied on the eleventh day of January, 1902. Said Hicks was a settler on the land, and claims he tried to file an application with the surveyor-general of California to purchase said land, but was prevented from doing so by the surveyor-general informing him that there was then a contest pending. The plaintiff had filed an application prior to the attempt of the said Hicks to file. One or two other parties had also filed prior to the time when Hicks forwarded his application.

There is no question that appellant might have intervened before judgment, under the provisions of section 387 of the Code of Civil…