Smith v. Ellis

Van Fleet, J.

Findings and judgment in this case were in favor of defendants, and plaintiff moved for a new trial on a statement of the case, specifying, among other things, insufficiency of the evidence to justify the findings. At the hearing of the motion for new trial the defendants moved the court to disregard the statement of the case and the specifications of insufficiency of the evidence therein, upon the ground that the specifications were insufficient to authorize the court to review the evidence; which motion the court granted to the extent of disregarding, and, in effect, striking out six of the several specifications relied upon by plaintiff. The plaintiff then moved the court for leave to amend his statement, by correcting and restating said specifications, which motion the court denied. Thereupon, the court upon the statement thus emasculated heard the motion for new trial, and denied the same. The plaintiff appeals from said several orders and from the judgment.

1. A careful examination of the specifications objected to satisfies us tiat the action of the court in disregarding them was erroneous; that, while perhaps inartificially expressed in some respects, they were in no substantial respect insufficient to point the particulars in which it was claimed the evidence failed to support the findings. “ The specification is not required to be made in any particular form of words, but, in some form, should distinguish each particular proposition of fact excepted to from all others found by the court or involved in a general verdict of a jury.” (Dawson v. Schloss, 93 Cal. 200.) These requirements are sufficiently met by the specifications here in question. Neither the court nor the defendants are left in doubt as to the particulars in which the plaintiff deems the evidence insufficient to sustain the findings excepted to. They are not open to the objection raised in the cases cited by respondents, either as being too general, or in being a mere recital of what the evidence does show. Without stating them in detail, we regard them as fully up to the specifications held sufficient in Harnett v. Central Pac. R. R. Co., 78 Cal. 32. This being so, the plaintiff was entitled, on his motion for a new trial, to a ruling by the lower court upon the sufficiency of the evidence to sustain its findings in the light of these specifications, and the action of the court in the premises was the denial to plaintiff of a substantial right. (Brenot v. Brenot, 102 Cal. 294.)

2. We think the findings sufficient to sustain the judgment; and the order of the court denying plaintiff’s motion to amend his statement, in view of the conclusion above reached, was without prejudice.

The judgment and the order denying plaintiff’s right to amend statement are affirmed. The order striking out and disregarding plaintiff’s specifications, and the order denying motion for new trial, are reversed, with directions to the trial court to hear the parties upon the alleged insufficiency of the evidence suggested by the said specifications, and thereupon to pass upon the motion for a new trial.

McFarland, J., DeHaven, J., Fitzgerald, J., Garoutte, J., and Beatty, C. J., concurred.