
    JOHN CUNNINGTON, J. THURMAN and ELIZABETH CANNEL, Appellant, v. JOHN S. SCOTT and JAMES ANDERSON, Defendants, and PATRICK HARRINGTON, Intervenor and Respondent.
    Practice — Intervention -Burden op Puoop. -Where a person, having an interest adverse to the plaintiff in an action, has been permitted to intervene therein and has taken issue with the material averments of plaintiff’s complaint, the burden is on the plaintiff to prove such averments, although the defendant' in the action has made default.
    Id. — Motion for New Trial — Statement.—The notice of motion for new trial designated as one of the grounds of the motion the “insufficiency of the evidence to justify the verdict,” the only specifications in the statement on such motion were of particulars in which the court erred; held, that such specifications would not be considered as of particulars wherein the evidence was insufficient.
    Appeal from a judgment of the district court of the third district, and from an order refusing a new trial. The opinion states the facts.
    
      Messrs. Woods & Iioffman and Mr. A. G. Sutherland, for the appellants.
    
      Messrs. Marshall & Iioyle, for the respondents.
   Powers, J.:

This is an appeal from the third district from a judgment in favor of the intervenor. The plaintiffs filed their complaint, alleging that they were the owners, and entitled to the immediate possession, of a lot of ore, “being of the weight of almost five thousand pounds, marked ‘Harrington ore,’ shipped by one Harrington and others, or by said Harrington, from the Silvar Spar mine, in Tintic mining-district, Juab county, Utah territory, to said defendants,” valued at $482.95; that the ore was in the possession of, and wrongfully detained by, tbe defendants; tbat a demand was made before suit: and -that tbe plaintiffs bad been damaged in tbe sum of $100 by tbe wrongful detention. Tbe plaintiffs in tbeir complaint demanded judgment for tbe possession of tbe ore, or, in case delivery could not be bad, for tbe sum of $600, tbe money value, and for $100 damages, and costs. The defendants made no-answer, and tbeir default for want of answer was duly entered. Patrick Harrington, tbe respondent, filed a complaint in intervention, alleging tbat be was tbe owner of tbe same ore; tbat be shipped it to tbe defendants, wlio held tbe same for him as bis bailees; tbat be was tbe owner, and entitled to tbe possession, of said ore; and tbat tbe plaintiffs were not tbe owners of, or entitled to tbe possession of tbe same. Tbe intervenor entered a default against tbe defendants Scott and Anderson for not answering the complaint in intervention.

It will be seen that the intervenor puts in issue tbe ownership of tbe plaintiffs, tbeir right of possession, and tbe wrongful withholding by tbe defendants Scott and Anderson, from tbe plaintiffs. In brief, tbe plaintiffs allege tbat, on a certain day, they were tbe owners, entitled to tbe possession, of tbe ore and tbat tbe defendants Scott and Anderson wrongfully withheld tbe same from them. This was tbe issue tendered by tbe plaintiffs. Scott and Anderson made default. Harrington, tbe intervenor, stepped in, took issue upon all the material allegations of plaintiffs’ complaint, and said tbat tbe plaintiffs were not, and bad not been at any time, tbe owners of, and entitled to tbe possession of, tbe ore in controversy. He admitted the value of the ore, but took issue with tbe plaintiffs on tbe wrongful bolding by Scott and Anderson, and alleged tbat such withholding was rightful, as they were bis agents.

We think that tbe intervenor stood in tbe position of a defendant, contesting tbe right of tbe plaintiffs, and tbat it was incumbent upon tbe plaintiffs to prove tbat they were tbe owners of tbe ore, and entitled to its possession. Nevertheless, tbe plaintiffs introduced proof of an admitted fact —tbe value of tbe ore — and neglected to prove ownership or right of possession, and rested their case. All tbe issues presented by tbe plaintiffs, and accepted by tbe intervenor, stood in favor of tbe latter, and against .tbe former, when they rested. Tbe plaintiffs bad made no case — were not entitled to judgment. This being so, it disposes of their appeal.

The burden resting upon tbe intervenor when tbe plaintiffs rested was to show himself entitled to the possession of tbe ore. In that investigation tbe plaintiffs could not interpose any evidence of title in themselves. Tbe time had gone by for that. They bad rested tlieir case. That being so, the alleged errors which grow out of the plaintiffs’ attempt to show title, in the midst of tbe intervenor’s proof of his right to possession, are of no moment: Speyer v. Ihmels, 21 Cal., 286, 287; Horn v. Volcano Water Co., 13 Cal., 70; Coburn v. Smart, 53 Cal., 744. It was said in Speyer v. Illinois that “tbe ground upon which tbe inter-venors are allowed to become parties to this action is that, by reason of their lien upon tbe property attached, they are interested in preventing the plaintiff recovering a judgment. They are for this purpose defendants in tbe action, and as tbe allegations in their complaint, aside from those made Sot the purpose of showing their right to intervene, are, in effect, a denial that at the time the plaintiff brought his action and attached tbe property he bad any cause of action, in order to obtain a judgment, so far as they were interested; after they had proved the facts alleged to show their right to intervene, be was required to prove his cause of action.” In'the case at bar the court, by its order, made previous to tbe trial, bad determined the right of Harrington to intervene.

The plaintiffs moved for a new trial, alleging as their second and third grounds the following: (2) Insufficiency of tbe evidence to justify tbe verdict; (3) Tbe verdict “is against law. We -presume that the term “verdict” was used inadvertently, and that the plaintiffs meant the decision of tbe court — as the case was tried before tbe court — sitting without a jury. It is provided by the Laws of 1884, p. 248, that “when the notice of the motion designates tbe ground of tbe motion, the insufficiency of the evidence to justify tbe verdict or other decision, tbe statement shall specify tlie particulars in which such evidence is alleged to be insufficient.” The statement in this case does not specify any particulars: 3 Estee, Pl. (3d Ed.), 410, 421, sec. 4918. The two points just mentioned are in the statement embraced under the head of “Errors of Law by the Court on the Trial;” but “it is not an error of law that the evidence is insufficient to justify a particular finding of fact;” and specifications in a statement for a new trial of particulars in which the court erred cannot be considered as specifications of the particulars wherein the evidence was insufficient: Smith v. Christian, 47 Cal., 18; 3 Estee, Pl. (3d Ed.), sec. 4904.

This disposes of this case; but it is proper for us to state that we have examined the other errors alleged. We find nothing to justify us in a reversal, and judgment is therefore affirmed.

Zane, C. J., and Boreman, J., concurred.  