JUDGES: Shafter, J.
OPINION
SHAFTER, Judge
By the Court, Shafter, J., on motion of Respondent to vacate judgment:
Ejectment. Motion by respondent to vacate the judgment of this Court reversing the judgment of the District Court and granting appellants a new trial on the respondent's filing a release of damages. The motion is objected to by the appellants on the ground that the new trial was granted not only for the reason that the damages were excessive, but for the further reason that the Court below found that the defendant had disseized the plaintiff of the whole of the five hundred acres sued for, when it appeared from all the testimony in the case that the plaintiff was himself in the actual possession and enjoyment of about one hundred and eighty acres thereof at the commencement of the action. To avoid this objection the respondent offers to release the one hundred and eighty acres from the operation of the judgment. If the particular location of the one hundred and eighty acres appeared either in the pleadings or by the findings we might order the modification upon the basis of the record, but there is nothing in either showing the location, and we are not at liberty to examine the evidence for the purpose of determining the location as a question of fact. To do so would be to exercise original rather than appellate jurisdiction.
Mr. Justice Currey, having been of counsel, did not sit on the trial of this case.