I. Respondents had a right to intervene. (Davis v. Eppinger , 18 Cal. 378; Brooks v. Hager , 5 Id. 281; Yuba County v. Adams & Co. , 7 Id. 35; Dixey v. Pollock , 8 Id. 570; Horn v. Vol. Water Co. , 13 Id. 68.)
II. We deny in our petitions of intervention that the plaintiff ever sold or delivered any goods, etc., to the firm of Ihmels & Co., or that they are indebted to him jointly in any amount whatever, but, on the contrary, we aver that all of the plaintiff's transactions were with Stockfleth, one of the partners, individually, and that he alone is liable. Here is a distinct issue of fact for the Court to determine; and unless the plaintiff can show that he did sell and deliver goods, etc., to the firm, he cannot recover in this action, and, of course, would not be entitled to the partnership assets. If it were true that the plaintiff sold these goods to the firm of Ihmels & Co., he could easily have shown that fact, while it would have been the next thing to impossible for us to have shown that he did not. The true rule is, that an intervenormust establish the affirmative allegations in his bill, as against either party, but when he " unites with the defendant in resisting the claims of the plaintiff," and denies the averment in the plaintiff's complaint, he stands with and to this extent occupies the place of the defendant, and with respect to these issues, the plaintiff must make out his case affirmatively or he will fail. The language of the statute clearly fixes the relative positions of the parties. The intervenor may " unite with the defendant in resisting the claims of the plaintiff." That is, he may become a defendant in the intervention, and then, of course, he will occupy the same position with respect to the plaintiff as any other defendant occupies, and it would be a radical change, indeed, in the practice to hold that a plaintiff should not be required to make out an affirmative case when each averment in his complaint is specifically denied.
In Louisiana, where the statute is very similar to ours, the Courts hold that bills of intervention, so far as they traverse the complaint, must be regarded like the answer of a defendant, and put in issue the plaintiff's allegations. (Neal v. Fesperman, 1 Jones, [La.] 446.)
This Court took the same view in the sase of Horn v. The Volcano Water Co. et al. (13 Cal. 70). In that case the Court said: " Looking, then, to the position of these judgment creditors, and treating it as an answer to the complaint, and the parties as asserting a priority in the liens of their several judgments over the lien of the mortgage," etc.
In the case of Davis v. Eppinger (18 Cal.)--Kloppenstein intervening--which was similar in all of its material parts to the case at bar, this Court held substantially the same rule. (See, also, 1 Greenleaf's Ev. sec. 74; C. and H. notes to Phillips Ev. 810.)
JUDGES: Norton, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
NORTON, Judge
On rehearing Norton, J. delivered the opinion of the Court. Field, C. J. concurring.
We granted a rehearing in this case principally for the purpose of considering whether our decision might not be modified so as to allow the parties a new trial. The merits of the case were not investigated, and as this was occasioned by an uncertainty as to the proper mode of proceeding under the anomalous provisions of the Practice Act relating to interventions, we think there should be a new trial. In other respects we adhere to our opinion as heretofore expressed.
The judgment is, therefore, reversed and the cause remanded for a new trial. The costs of this appeal to abide the event.