SMITH v. IDAHO QUARTZ MIN. CO. and Others (SILVESTER, Intervener)

SMITH v. IDAHO QUARTZ MIN. CO. and Others (SILVESTER, Intervener). No. 11,425; August 12, 1886. 11 Pac. 878. Trespass.—Findings Held Justified by the evidence. APPEAL from the Superior Court, County of Nevada. Action to recover the possession or value of certain timber and wood which plaintiff alleged defendant had cut and carried away from land of which plaintiff claimed to be the owner. Defendant failed to answer, and was defaulted. One Silvester intervened, claiming the wood against both plaintiff and defendant, and denying that plaintiff was the owner of the premises, or that he had any interest therein other than as a mortgagor for the sum of two hundred dollars, and also that the wood cut and carried away had been so cut and taken by persons who were in possession of the premises under a claim of title adverse to the plaintiff. Evidence was introduced on these matters, and the court held in accordance with the allegations made in intervener’s pleading, and rendered judgment against plaintiff. Plaintiff appealed on the ground of insufficiency of the evidence to justify the findings and decision, and because of error at the trial in not compelling the intervener to open the case; but, instead, holding that the burden of proof was on plaintiff. J. I. Caldwell for appellant; E. W. Roberts and A. Burrows for intervener. [MAJORITY — By the COURT.] By the COURT. The court was justified by the evidence in finding that the plaintiff was not the owner of the premises upon which the wood and timber had been cut, and had no interest in the premises other than as security, and that he was not the owner of the wood and timber, and that the wood was cut by parties in the possession of the premises under a claim of title adverse to plaintiff. Under such circumstances, the alleged errors as to other matters are immaterial. Judgment affirmed.