Bell v. Staacke

VAN DYKE, J. The appellants’ appeal from the judgment in this case has been dismissed: 137 Cal. 307, 70 Pac. 171. The matter now before the court for consideration is their appeal from the order denying their motion for a new trial.

In the notice of motion for a new trial, appellants assign, among other grounds, errors of law occurring at the trial, excepted to by such parties, and insufficiency of the evidence [29]to justify the decision. The bill of exceptions, however, contains no specification on the ground of errors of law. The so-called specification of insufficiency of the evidence is in the following form: “The evidence is insufficient to justify the finding,” followed by a statement of what the finding contains; and this is repeated in the same language' in reference to each of the twenty-two different findings. The code requires: “When the exception is to the verdict or decision, upon the ground of the insufficiency of the evidence to justify it, the objection must specify the ‘particulars’ in which such evidence is alleged to be insufficient”: Code Civ. Proc., sec. 648. The specification in this case clearly does not comply either with the code or repeated decisions of this court. Prom the specification it is impossible to ascertain in what particular the evidence fails to support any finding referred to. It is presumed that the findings are supported by the evidence, and it is only proper to require the party who challenges their correctness to point out specifically wherein the evidence fails to support the same. In Kyle v. Craig, 125 Cal. 116, 57 Pac. 795, fifteen errors were assigned, in which it was claimed the evidence was insufficient to justify the findings. This court says: “The only specification wherein the evidence is alleged to be insufficient is, ‘The evidence is insufficient to justify, ’ etc. Unless the particulars in which the evidence is said to be insufficient to justify the particular finding, or part thereof, are pointed out in the assignment of error, we cannot notice the assignments here. ” In Taylor v. Bell, 128 Cal. 306, 60 Pac. 853, the specifications are like this: “The court should have done” so and so; “The evidence shows,” etc.; and, as stated by the court there, “This is a form of specification which has been repeatedly held to be insufficient”: See, also, Dawson v. Schloss, 93 Cal. 194, 29 Pac. 31; De Molera v. Martin, 120 Cal. 544, 52 Pac. 825. The evidence contained in the bill of exceptions in this case comprises pages from 154 to 760 of the transcript, embracing 1,820 folios, and, aside from the imperative requirement of the code referred to, it would be quite unreasonable to ask the appellate court to grope through this mass of evidence for the purpose of ascertaining whether any particular finding was supported by the evidence.