This was a proceeding before the County Court, in which the election of defendant, as clerk of Shasta county, was contested by the plaintiff. According to the certified returns from the several election precincts, the defendant received one thousand and seventy-eight, and the plaintiff one thousand and seventy-seven votes, and thereupon the certificate of election was granted *210to the defendant. Upon the trial, the Court rejected fourteen votes, as illegal, from the votes counted for the defendant, and twelve from those counted for the plaintiff, leaving the plaintiff a majority of one. The defendant then moved for a new trial, which was granted, and from this order, the plaintiff appealed.
The first point raised by the appellant is, that the statement for a new trial was not agreed to by plaintiff, and not settled by the Judge.
It is clearly stated in the record, that on the trial, the parties read in evidence certain depositions and other papers on file, and that a certain witness, whose name is given, was examined by the defendant. The depositions and papers read by each party are properly described in the record. The statement for a new trial contains the grounds upon which the defendant intended to roly; also, the evidence of the only witness examined orally in Court, and a statement that the defendant would refer to the evidence on file, and the pleadings in the case. A copy of this statement was duly served upon the counsel of plaintiff, as appears from their written acknowledgment at the foot of the statement. Both parties appeared at the argument upon the motion for a new trial; and in the order granting the same, and which is signed by the Judge, it is recited that the defendant “ moved the Court to grant a new trial for cause set forth in the statement herein filed.”
The learned counsel for plaintiff have referred us to the cases of Linn v. Twist and others, 3 Cal. Rep., 89, and Harley v. Young, 4 Cal. Rep., 284.
But these cases would not seem to be in point, as it does not appear that the statement was anywhere referred to in any part of the record signed by the Judge. These decisions were made before the three hundred and thirty-ninth section of the Code was amended in 1855. We are not disposed, therefore, to extend the principle of the case of Linn v. Twist to any case not strictly parallel in its substantial circumstances. It is true, that the provisions of the three hundred and thirty-ninth section apply only to statements on appeal. But they contain principles that, in some measure, by parity of reasoning, would apply to statements for new trials.
In this ease, the record shows clearly, that the only evidence given was on file when the statement was made, except the testimony of a single witness, and that purports to be given in the statement itself. This case comes within the principle laid down in the late case of Williams et al. v. Gregory et. al., January Term, 1858.
If we are correct in these views, tho statement of defendant for a new trial was sufficient.
It is objected on the part of defendant, that there is no statement on appeal, and this Court must presume the Court below *211had ample reason for making the order granting a defendant a new trial.
In a statement for a new trial, the evidence may be simply referred to, and need not be contained in the statement itself. It is not so in a statement on appeal, in which the evidence, if relied upon, must be set out. If the statement on appeal does not contain the evidence, or so much at least as may be necessary, then the appellant cannot rely upon any ground depending upon the testimony.
In this case, one of the grounds relied upon for a new trial was the insufficiency of the evidence to support the finding of facts by the Court. As the testimony is not before us, we must presume the Court below had good reason for granting a new trial. If the plaintiff wished to overcome this presumption, he should have filed his statement on appeal, which should have contained all the testimony given on the trial.
It is urged by the counsel of plaintiff that this was a special case in which the statute gives the Court below no right to grant a new trial. But we think the objection not well taken. The apjmllate power of this Court over the County Courts in such cases could not be properly and efficiently exerted, unless the power to grant a new trial existed in the Court below. If that Court could not grant a new trial, its refusal to do so would not be error. And as this Court can only direct the lower Court to do that which it has improperly refused to do, there could, under such a theory, be no new trial at all, under any circumstances, however grievous the error might be. We think, under the provisions of the sixty-third section, that such a power can be exercised by the County Court. (Wood’s Digest, 382, Art. 2,163.)
These points dispose of the case, and it is unnecessary to notice the others made by both parties.
Judgment affirmed.