I agree to the proposition first announced in the opinion of Mr. Justice McKee ; but I am unable to agree to the proposition that where, as in this case, all of the issues of fact raised by the pleadings are found upon by the Court, and the findings are sustained by the evidence, as is expressly stated by the Court below, an erroneous judgment drawn from those facts can be corrected by means of a motion for a new trial.
The authorities cited in the opinion, in support of the proposition that this can be done, are Bosquett v. Crane, 51 Cal. 505; Tevis v. Hicks, 41 id. 123; Emerson v. Santa Clara County, 40 id. 543; and Martin v. Matfield, 49 id. 42. I am unable to see that the first three of these cases have any bearing on the point at all; and the last one, Martin v. Matfield, so far as it applies, is, as I read it, directly the other way. Thus say the Court in the opinion delivered by Mr. Chief Justice Wallace: “ The insufficiency of the evidence to justify the judgment is not a ground of motion for a new trial. Such a motion is not directed at the judgment, but at the verdict, or other decision of fyet, for a new trial is a re-examination of an issue of fact. *498(Code Civ. Proc. § 656.) * * * A verdict or other decision of fact may be set aside, and a new trial granted, if such verdict or decision of fact be against law (§ 656, supra, subd. 6), that is, if an error of law be committed, resulting in an erroneous decision of fact.” And Mr. Justice Rhodes, in his concurring opinion in this case, said : “ A new trial is a re-examination of an issue of ■ fact (Code Civ. Proc. § 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.”
These views are supported by the cases of Jenkins v. Frink, 30 Cal. 586; Shepard v. McNeil, 38 id. 74; and Thompson v. Hancock, 51 id. 110.
Indeed, I cannot see how it can be otherwise under the statute. Since a new trial is “ a re-examination of an issue of fact,” where, as here, all such issues are correctly found upon, 1 am unable to find any authority for “a re-examination” of such facts; in other words, for a new trial, or to see any necessity therefor. As said by Mr. Justice Rhodes, in Martin v. Matfield, supra, the Code has provided other and sufficient modes for the correction of such errors as were complained of in this case. .
Hor can I see that the Court below erred in admitting the testimony of Bicknell, for it was responsive to and tended to prove the matters set up in the answer. That these matters did not, in law, constitute a defense to the action could have been taken advantage of by the plaintiff, by a motion for judgment on the pleadings, and subsequently by an appeal from the judgment, and perhaps by a motion in the Court below for judgment on the findings in his favor. But for the reasons already given, the error could not, in my opinion, be corrected on a motion for a new trial.
I therefore dissent.