It was held in Rued v. Cooper, 109 Cal. 682, [34 P. 98], that property not included in the insolvent's schedule, or known to the assignee until after his discharge, passed to the assignee by virtue of his assignment. (See, also, Poehlmann v. Kennedy, 48 Cal. 201.) Of course, this could not be, if the mere failure to include the property in the inventory could affect the jurisdiction. As said in Friedlander v. Loucks, 34 Cal. 24, "the questions made here relate to movements within the jurisdiction rather than to the jurisdiction itself."

He was the assignee in insolvency of the appellant, and as such the title to all the estate, real and personal, of the insolvent debtor, not exempt from execution, was vested in him. (Insolvent Act, 1880, sec. 17; Poehlmann v. Kennedy , 48 Cal. 201.) True, he held the property in trust for the benefit of the creditors of the insolvent, but it was his duty to care for and look after the property, and, if any was withheld from him, to sue in his own name and recover possession of the same.          In this case there were left in the hands of the commissioner, after paying the amount found due the plaintiff and all expenses incident to the foreclosure, the sum of four hundred and forty-seven dollars, which by the decree he was directed to pay to the said assignee.

         Appellant's interest was such as entitled him to intervene. ( Code Civ. Proc., sec. 387; Horn v. Volcano Water Co ., 13 Cal. 62; 73 Am. Dec. 569; Gasquet v. Johnson, 1 La. 431; Coffey v. Greenfield , 55 Cal. 382; Stich v. Dickinson , 38 Cal. 608; Story's Equity Pleading, 9th ed., 153; Spanagel v. Reay , 47 Cal. 608; People v. Pfeiffer , 59 Cal. 90; Poehlmann v. Kennedy , 48 Cal. 201; Pomeroy's Remedies and Remedial Rights, 2d ed., secs. 365, 378, 411, 416, 418, 419; Whitwell v. Barbier , 7 Cal. 57; Kirk v. Reynolds , 12 Cal. 99; Tillson v. Ford , 53 Cal. 701; Murdock v. Brooks , 38 Cal. 596.) Behlow, even as a former member of the partnership, should be a party to the action, and has an interest in an accounting, and by reason of his lien. (Settembre v. Putnam , 30 Cal. 490; Gray v. Palmer , 9 Cal. 616; Blood v. Fairbanks , 48 Cal. 171; 50 Cal. 420; Louisiana Board of Trustees v. Dupuy, 31 La. Ann. 305; Story's Equity Pleading, 5th ed., sec. 219; 9th ed., secs. 130, 137, 167, 218; Code Civ. Proc., sec. 389; Williams v. Bankhead, 19 Wall. 571.) Behlow has never lost his title to his stock which represented his interest in the partnership property.

The case is a proper one for intervention by the assignee. (Brooks v. Hagar , 5 Cal. 283; Hocker v. Kelley , 14 Cal. 165; Horn v. Volcano W. Co ., 13 Cal. 62; 73 Am. Dec. 569; Davis v. Eppinger , 18 Cal. 378; 79 Am. Dec. 184; Coghill v. Marks , 29 Cal. 673; Stich v. Goldner , 38 Cal. 608; Spanagel v. Reay , 47 Cal. 608; Poehlmann v. Kennedy , 48 Cal. 201; Gradwohl v. Harris , 29 Cal. 150; Coburn v. Smart , 53 Cal. 742; Wangenheim v. Graham , 39 Cal. 178; Ainsworth v. Bowen , 9 Wis. 348.) The rights of McNevin's assignee, being prior in time, were superior to those acquired under the attachment.

However, it is well settled that an intervenor is entitled to have the issues raised between himself and the other parties tried and determined. (Poehlmann v. Kennedy (1874) 48 Cal. 201, 207-208.) “This right [cannot] be [a]ffected by the dismissal of the plaintiff’s action.”

We noted, "[t]he fact that the underlying action has in the meantime been resolved against the original plaintiffs Mayer does not prevent consideration of HBMP's complaint-in-intervention." ( Poehlmann v. Kennedy (1874) 48 Cal. 201, 207-208; Deutschmann v. Sears, Roebuck Co. (1982) 132 Cal.App.3d 912, 916-917.) Thus, pursuant to our disposition of HBMP's prior appeal, HBMP will, as noted by Driver, "have a chance to assert its own alleged claims in its own complaint in intervention, not as an added party to the Mayers' second amended complaint."

We are persuaded that the reasoning of those cases has equal application here. In Poehlmann v. Kennedy (1874) 48 Cal. 201, defendant's motion for nonsuit was granted as to the plaintiff, and an action in intervention was likewise dismissed by the trial court, on the ground that there was no action pending after the nonsuit had been granted. The Supreme Court reversed, holding: "The intervenor was a party to the suit, claiming an interest in the matter in litigation adverse to both plaintiff and defendants.

Where an intervener claims adversely to both of the original parties, its right to have the issues determined cannot be affected by a dismissal of the plaintiff's action. (See Voyce v. Superior Court (1942) 20 Cal.2d 479, 488 [ 127 P.2d 536]; Poehlmann v. Kennedy (1874) 48 Cal. 201; 37 Cal.Jur.2d, Parties, § 58, p. 403.) Thus, we must order a dismissal of the appeal filed by the California State Department of Conservation.

Section 1010 of the Code of Civil Procedure, provides that "the notice of a motion . . . must state . . . the grounds upon which it will be made"; ( Carpy v. Dowdell, 130 Cal. 290, [ 62 P. 563]) and if this be true, it follows that only such grounds as may be specified can be considered by the court in support of the motion. ( State v. Sherman, 42 Mo. 215; Corwith v. State Bank of Illinois, 8 Wis. (182) *376; Silva v. Holland, 74 Cal. 530, [16 P. 385]; Poehlmann v. Kennedy, 48 Cal. 201.) The motion as made pursuant to the notice given was to have the two items mentioned stricken from the memorandum upon the ground that they were "unlawful and not properly taxable as costs."