Appeal from an order granting a new trial. Certain of the defendants gave notice that they would move for a new trial on the following grounds: “Insufficiency of the evidence to justify the judgment herein, and that it is against law.” Neither of those are statutory grounds. The judgment does not, in any case, rest on the evidence, but on the verdict or other decision of issues of fact, together with any admissions there may be in the pleadings. The grounds of the motion should have been directed at the finding.
When the application for a new trial is made for the sixth cause mentioned in section six hundred and fifty-seven (Code C. P.) viz: insufficiency of the evidence to *45justify the verdict or other decision, or that it is against law—and is based on a bill of exceptions, as in this case, the grounds must be stated in the bill of exceptions. It may be conceded—without deciding the point—that the settlement of the bill of exceptions without objection to the notice was a waiver of the objection. The bill of exceptions states, as the first ground of the motion, that “the decree herein is not authorized by the evidence, the findings or pleadings.” As was stated in passing on the question of the sufficiency of the notice of the motion, this ground is objectionable, because it does not attack the finding. A new trial is a re-examination of an issue of fact (Code C. P. sec. 656); and when a new trial is granted the finding is set aside, and of course the judgment resting upon it must fall. But the question whether the judgment is authorized by the pleadings or findings, cannot be agitated on the motion for a new trial, for it is not involved in a re-examination of the issues of fact. The Code has provided other and sufficient modes for the determination of both branches of that question; and it is very clear that the question whether the issues of fact were correctly found, does not depend in any manner on the question, whether a pleading states sufficient facts to entitle a party to the relief granted by the judgment, or whether the issues as found sustain the judgment.
If the word “finding” be read for “decree,” in the first ground, the ground will still remain defective, for it does not specify, as is required by section six hundred and forty-eight, (Code C. P.) the particulars in which the evidence is alleged to be insufficient. This requirement is peremptory.
The second and third grounds are also objectionable and are not entitled to be considered, for the reasons already stated.
The fourth ground is that “there is no evidence that the defendant, Alice Matfield, was not a beneficiary of the money for which said note and mortgage were given.” The answer to this point is that the finding does not state that fact; and, therefore, it cannot be said that the finding of that fact is not sustained by the evidence.
*46The seventh ground for a new trial mentioned in section six hundred and fifty-seven, “error in law occurring at the trial, and excepted to by the party making the application,” is not included in, and cannot be re-examined upon a specification under the sixth ground, that the finding is against law.
The rule in respect to the specification of the particulars in which the evidence is insufficient to justify the finding of any fact in issue, is very simple, and can readily be followed; and the rule is the same in all cases when there are express findings, without regard to the length of the bill of exceptions. Nor is the rule varied by the statement that the bill of exceptions contains all the evidence in the case; for it is conclusively presumed that it contains all the evidence that relates to, and serves to explain or illustrate the ground specified in the bill of exceptions. Specifications prepared in a form differing in some respects from the statutory form, approaching, but not conforming to the rule—and instances of such' are very numerous—lead to a great amount of useless labor on the part of counsel, as well as the Court, and seriously obstruct the Court in reaching the real points in contest.
The Court found “First—That the allegations of the complaint were proven. Second—That no proof, save that in support of the allegations of the complaint was introduced.” The matter which the defendants who appealed desire to have corrected, is apparently that portion of the decree which reserves from sale the interest of Alice Mat-field in the mortgaged premises until after a sale of the interest of the other mortgagors. It is improper to determine on this appeal, whether the fact as alleged in the complaint that she was the wife of one of the mortgagors, when the mortgage was executed, and did not sign the note for which the mortgage was given (and, of course, was not personally responsible for the money due on it), would entitle her to the relief above mentioned; but it is beyond all question that if the decree be erroneous in that respect, the correction cannot be made on a motion for a new trial.
I concur in the order..