Beans v. Emanuelli

By the Court, Sawyer, C. J. : The complaint in this case, we think, was sufficient, and the demurrer was properly overruled. The only other point made in appellants’ brief is that the Court erred in not finding that the property in question was the separate property of Josefa Emanuelli—that is to say, that the finding on this point was contrary to the evidence. It is enough to say in respect to this point, that it was not specified as a ground of the motion for new trial in the statement unless embraced in the general ground found at the beginning of the statement, Governing all the evidence and all the issues in the case, “that the evidence offered and admitted on the trial of this cause is insufficient to justify the findings and the judgment of the Court herein.” Even this general ground seems to have been abandoned when at the close, in the proper place, it is stated that “defendant will rely on the argument of the motion for new trial in this cause, upon the following grounds,” and then enumerates, in their proper order, the grounds, none of which embrace, even in general terms, the one in question. This formal specification, in their proper place and order, of the grounds upon which he says he will "rely, implies that he relies on no other. But suppose he does not intend to abandon the general ground, that the findings are contrary to the evidence, we have held, over and over again, that this general specification is insufficient, under section one hundred ninety-five, which expressly provides that “ the statement shall specify the particulars in which such evidence is alleged to be insufficient,” and “the statement shall contain so much of the evidence * * * as may be necessary to explain the particular points thus specified, and no more.” (Prac. Act, Sec. 195; Hutton v. Reed, 25 Cal. 490; Burnett v. Pacheco, 27 Cal. 410; Carleton v. Townsend, 28 Cal. 220, 221.) The specification of this point is, in all respects, as general as in the cases cited, and as general and devoid of particularity as it could well be. If such a specification could be tolerated, the object of the statute would be frustrated, [121] .and it would be necessary in every case for the respondent in the motion to see that all the evidence introduced upon all the issues at the trial should be included in the statement. Although not necessary to a decision of the points now under discussion, some remarks in appellant’s closing brief render it proper to say that it is not enough, that in the history of the case exceptions appear scattered here and there through the statement, for a great many exceptions are taken in the course of a trial which are afterward not relied on, and, under the statute, it is necessary in the statement to “specify the particular errors upon which the party will rely” This language of the statute is plain, and has been so often explained and illustrated, and the rule prescribed enforced by this Court, that there does not now seem to be any good reason for departing from the practice established. If the grounds are not specified in the mode prescribed, the only thing we can do, is to obey the injunction of the statute, which is, “if no such specification be made, the statement shall be disregarded.” As to the point under consideration, there is “no such specification,” and to that extent the statement must be disregarded. The only specifications upon which any plausible argument can be made as to their sufficiency, are those contained in the one numbered “ Second.” This embraces several particulars, and we should endeavor to hold it sufficient as to some of its parts if any point was now really made upon it. The portion which is most distinctly specified, in relation to the proceedings in the Probate Court, is withdrawn by stipulation. But the whole jumbles together as one ground the proceedings of the Probate Court, and the entire evidence of two witnesses, the greater portions of whose testimony were not objected to at all. bTo point is, however, now made in the briefs as to the admissibility of any part of this testimony, and, doubtless, because there is nothing in the objection. The third ground is too general, and cannot be noticed [122] under the authorities cited, but no specific point appears to be made under it. The fourth is, substantially, but a repetition in another and condensed form of the second; and the first in relation to newly discovered evidence, has no place at all in a statement on motion for new trial. It is an independent ground presented not by statement, but by affidavit, which must, also, be filed within the time prescribed for such filing. (Prac. Act, Secs. 194, 195.) But we have already disposed of the points relied on in appellant’s briefs. Judgment and order affirmed, and remittitur directed to issue forthwith.