Hawkins v. Abbott, 40 Cal. 639

Hawkins v. Abbott

40 Cal. 639 | Cal. | 1871

Rhodes, C. J.,

delivered tbe opinion of tbe Court, Wallace, J., Temple J., and Obookett, J., concurring:

Tbe judgment against Allison cannot be sustained, because be was neither served witb tbe process, nor was bis appearance in tbe action entered.

*641Tbe other points presented by tbe defendant Abbot, re- ■ late to bis motion for a new trial. -When tbe motion is made on a statement, no point will be considered and no alleged error will be noticed, unless it is specified under one of tbe grounds of tbe motion. An argument in sueb case, in wbicb tbe merits of tbe cause of action or of tbe defense are presented, is of no service to tbe Court, unless it legitimately arises upon one or more of tbe specifications in tbe statement. Tbe appellant’s points should accord with, or be substantially tbe same as tbe specifications in tbe statement; or at least should result from two or more of them, wbicb present tbe same question. It is often tbe case, that it is proper to specify in tbe statement, tbe particulars in wbicb tbe evidence is insufficient to sustain tbe verdict, or tbe finding of any fact, when tbe evidence in that respect is conflicting; for if tbe evidence clearly preponderates against tbe verdict or finding, it is tbe duty of tbe Court below to set it aside. But it is useless to present to tbe Appellate Court a point based on such specification; for tbe verdict or finding will not be set aside where tbe evidence on tbe point in controversy is conflicting. Under tbe ground that tbe evidence is insufficient to justify tbe findings in this case, there are many specifications; but tbe evidence in each of tbe particulars mentioned was conflicting, except in tbe fourth and ninth, and in those two, tbe facts mentioned are immaterial. Tbe specifications, under tbe ground that tbe findings are against law, cannot be sustained. They present principally questions of fact or questions of law and fact combined, and it does not appear that tbe decision of tbe Court was adverse to tbe propositions of law laid down in tbe specifications.

Judgment as to Allison reversed, and as to Abbot affirmed.