How the motion for a new trial is to be made, see C. C. P. § 658. But we respectfully maintain that when thedecision (findings of fact and conclusions of law) is upon its face against law, no statement or bill of exceptions is necessary; for the motion on that ground would derive no support from the statement or bill, and the omission to have any statement or bill of exceptions or any specifications therein showing wherein the decision is against law, raises no presumption that that ground is waived. (Putnam v. Lamphier , 36 Cal. 151-8; Morley v. Elkins , 37 id. 454-7; S. P. R. R. Co. v. Superior Court, Kern Co. , 8 P. C. L. J. 1015; People v. Maguire , 26 Cal. 641.)
A motion for a new trial is merely a remedy (Kelly v. Larkin , 47 Cal. 58), and is governed by the Practice Act, (C. C. P.) which being entirely remedial (Hastings v. Cunningham , 39 Cal. 142), must be liberally construed so as to " bring within its scope every case which comes clearly within its spirit and policy." (Wallace v. Moody , 26 Cal. 392; Cormerais v. Genella , 22 Cal. 125; Kent v. Laffan , 2 Cal. 596; C. C. P. § 4.)
The Legislature has said that when the decision (the findings of fact and conclusions of law-- C. C. P., Secs. 632- 3) is againstlaw, the party complaining on that ground shall have a new trial ( C. C. P., Sec. 657, Subd. 6), though he may concede, we claim, that all the facts as found are sustained by the evidence. That may not be the ancient rule; but the Legislature has power to provide and alter the procedure and remedies. (People v. Supervisors , 70 N.Y. 229.)
OPINION In Bank. The Court:
In this cause, which is ejectment, issue was taken on the allegation of possession by defendant of the premises sued for when the action was commenced. On this issue there is no finding by the Court below. There should have been a finding on all the issues. The Court should have found whether defendant was possessed of the parcel of land sued for or not. Evidential facts were found by the Court, and not the ultimate fact of possessed or not possessed. There being no finding on this issue, the decision of the Court below is against law. The cause should for this reason be retired.
The order granting a new trial is therefore affirmed.