This is an appeal from an order denying appellants' petition for intervention and granting appellee's motion to strike the petition. There seems to be no question that a judgment or decree denying the right of intervention is appealable. Rollins v. Deason, 263 Ala. 358, 82 So.2d 546, and cases there cited.
Appellee sued appellants A. W. Pitts, Sr. and Annie Pitts on an account in August, 1960. Pleas of the general issue and recoupment were filed, various other pleadings were had, and the cause was set for trial on April 9, 1962. On Friday, April 6, appellants A. W. Pitts, Jr. and Relfe S. Pruett filed their petition to intervene, alleging that they, together with the original defendants, were a partnership doing business under the name of A. W. Pitts Company, and that they, as partners, were interested in the litigation; and that they were interested in the claims against appellee as shown in the pleas of recoupment filed by the original defendants. They sought to intervene under Tit. 7, § 247, Code 1940, which provides:
The court denied the petition on the grounds that the petitioners did "not have such an interest in the outcome of this proceeding as to entitle them to intervene;"
The statute says, and our cases hold, that the right to file a petition of intervention is dependent upon the claim of interest by the petitioner in the matter in litigation. Tit. 7, § 247; Greene v. Greene, 220 Ala. 395, 125 So. 640. Appellants have failed to show such an interest as will sustain the proposed intervention. The suit was against A. W. Pitts, Sr. and Annie Pitts, individuals. It was not against a partnership, nor against all the members of the partnership. As pointed out by the trial court, a judgment against the defendants would not be a judgment against the partnership. While partners are usually "interested" in the outcome of any suit against an individual partner, that is not the "interest" required by the statute, and will not, of itself, support an intervention. The word "interest" as used in the intervention statute means more than mere concern. 67 C.J.S. Parties § 57b, p. 985.
The statute also requires that the intervention should be "filed by leave of court." The Supreme Court of the United States construed a statute similar to ours in Smith v. Gale, 144 U.S. 509, 12 S.Ct. 674, 36 L.Ed. 521, and held that "leave of court" gives the trial court the right to exercise judicial discretion, and if the request to intervene is made for the first time in a case that has been pending for two years, and the day before it is to be tried, it is a reasonable exercise of that discretion to refuse the request.
In Hulst v. Dower, 121 Colo. 150, 213 P.2d 834, the cause had been pending nearly four years. On October 20, 1947, trial was set for January 20, 1948. On December 27, 1947, motions seeking intervention were filed. The court said that "the fact that plaintiffs in error delayed until the eve of the trial date of the main action to file application to intervene, * *, in itself, as we think, justified the trial court's order of denial."
Here, appellants had knowledge of the suit since its inception some twenty months prior to the attempt to intervene, and the petition was filed on Friday before the cause was set for trial on Monday. We think the trial court was justified in denying leave to intervene under the authorities cited.
The statute provides that, to entitle one to file a petition for intervention, he must obtain leave of the court to do so on notice to opposing parties. Our cases required this procedure even prior to the enactment of the statute. Greene v. Greene, 220 Ala. 395, 125 So. 640.
The decree of the trial court is due to be affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.