and they are hereby released therefrom. And upon the findings and decision of the court, heretofore made upon the issues, joined between the parties, concerning the property,*** it is ordered, adjudged and decreed by the court, that the property, real and personal, described in the complaint, is, and that it be, and remain the separate property of the defendant, M. C. Lake, and that the plaintiff take no part thereof, or interest therein, except as hereafter specifically decreed."

Then follows an order that the defendant pay plaintiff monthly, so long as she shall remain unmarried, the sum of one hundred and fity dollars, and fifty dollars for the child, and that said sums be, and remain a charge and lien upon certain real property described. In the decree the court reserved jurisdiction to modify the allowance at any time

Defendant did not move for a new trial, or appeal from the judgment, or any part thereof, but plaintiff so moved, as to the issues, respecting the property rights alone. She did not ask for a new trial of the issues touching the alleged cruelty, and her right to a divorce.

*

*

*

The motion was denied, and this appeal is from the order denying a new trial, and from "that part of the judgment affecting the questions of alimony, and the property rights of the parties to said action."

It is first urged by counsel for respondent that a new trial is a reexamination of all the issues of fact raised by the pleadings; that it could not have been granted, in this case, as to property rights alone; that a motion to re-try a part of the case was a nullity; and, consequently, the court did not err in overruling the motion made. The question is squarely presented, then, whether the court below had the power to order a new trial of the issues relating to the character and disposition of the property alone, if material error was shown in the trial of, and affecting that branch of the case only; or, is it true that all the issues made by the pleadings, if any, must have been re-tried?

This question is not only exceedingly important in the matter of practice, but it is also of great moment in the case in hand, if, as claimed by appellant, the court erred in deciding that the property belongs to defendant individually; and, for the purposes of the present discussion, we must assume that the claim of error is well founded.

And, too, the legal presumption is, that the issues upon the principal branch of the case, the divorce, were tried and determined according to law.

Defendant is presumed to have known the law; and, if it is true, as claimed by him, that a new trial could not be had of one part of the case, then he knew that the court could not grant plaintiff's motion; and if he wanted a new trial of the other part, he should have applied upon the entire case. Failing to do so, or to appeal, the presumption is that the divorce was properly granted.

No. 43.-2.

On the other hand, if the lower court had the power to grant a new trial of a part of the case, then defendant should have applied also for a new trial of the issues determined against him, and failing to do so, the presumption is as above stated.

It follows, therefore, that we must proceed upon the presumption that the principal issue was tried and determined without error, and, as to that issue, that there is no cause or ground for a new trial.

If it is true that, in this case, the district court could not grant a re-hearing of the issues touching the property rights, without disturbing the decision upon the principal issue, then it is certain that in every instance, where a new trial is granted, the order must embrace the entire case, however distinct the issues may be; and, although it may be admitted, as to one cause of action, that the trial was free from error or exception.

For here we have a case where plaintiff must show herself entitled to a divorce before she can claim any separate property rights, and that she has done already.

At another trial, before she could ask the court to retry the portion of the case wherein error is alleged, she would be obliged to establish a right which is already determined in her favor, without any suggestion of error. She would be obliged to take the risk of defeat at another trial, as to the principal issue, in order to obtain rights incident to those already established. She would have to do over again what is already well done, and then, if successful, establish such property rights as she might have, instead of commencing at the issue the trial of which, alone, is claimed to have been affected by error.

Plaintiff applied for a divorce and a division of alleged common property There were separate trials, however, of the issues presented by the pleadings, those relating to the divorce by a jury, and those touching property rights by the court. The special findings by the jury, adopted by the court, established plaintiff's right to a divorce.

The verdict of the jury and the order of the court thereon were complete before the trial fixing the property rights, and if error crept in at the last trial, it could not have affected the result of the first.

The trial of the issues relating to the divorce was as unaffected by any errors that occurred at the trial had in relation to the property, as it would have been if plaintiff had filed her bill for divorce, prosecuted it to judgment in her favor, without any showing by either party of the existence of community property, and had afterwards brought an action to recover her share of such property.

That she could have pursued such a course we have no doubt: De Gody v. Gody, 39 Cal., 157. If she had, and the result of the trials had been the same as in this, she could undoubtedly have applied for a new trial in the case relating to the property, without making application also in the other; and yet there would have been just as

much reason in that case for a double application, in order that justice might be done, as there is now in requiring her to include in her motion a request for a new trial of the issues relating to the divorce.

It is urged by counsel for respondent that the practice of re-trying less than the entire case would result in splitting one cause of action into many parts, thus increasing expenses, multiplying trials, burdening courts, and producing confusion and uncertainty.

If these results would follow in a given case, they might be urged against such practice in that case; but the argument does not apply here.

In this case, if the decree granting the divorce is correct, what reason can be urged against allowing that to stand and correcting the balance affected by the error? There is none, unless the law prohibits such practice in every case.

Suppose the court had found in favor of plaintiff as to both issuesthis is to say, had decided that plaintiff was entitled to a divorce, and that the property belonged to the community; that both parties agreed to the correctness of the divorce proceedings and decree, but that defendant, believing the court erred in its decision concerning the property, had applied for a new trial as to that only. In that case, plaintiff could not have had cause for or desired a new trial of the issues relating to the divorce, because the decision was already in her favor.

Would not the defendant have had the right to say: "I concede the correctness of the decree granting a divorce; but the court erred in deciding that the property belonged to the community. I desire a re-trial of that question. Could the plaintiff have opposed the application because it did not include a request for a retrial of an issue already decided in her favor? If such is the law, it ought to be changed, and yet that is the theory of counsel for respondent.

New trials are permitted for the correction of errors, whether they are ordered by the appellate or trial court. Undoubtedly, if an error affects the entire case, a new trial should be granted of all the issues; but when it could not have affected but one of several separate, independent causes of action, or when, as in this case, it occurred, if at all, in the trial of an issue not involving the main issue of fact in the case, and the error can be corrected without disturbing the verdict or decision not affected thereby, we think it can be done.

The statute provides that in case a divorce is granted, the court shall make disposition of the property as therein stated.

The division of property is but an incident to or consequence of a divorce upon which it depends; but the divorce does not depend upon the property.

It is the constant practice of the United States circuit courts in patent cases, first to settle the question of infringement; and if, upon that question, the decision is in favor of the complainant, a decree is entered that he shall recover the rents, profits and damages re

sulting from infringement. The case is then referred to a master to ascertain the rents, etc., and upon the report coming in, it is either confirmed, if satisfactory, or re-referred to correct errors. But the decree settling the rights of the parties, upon which the accounting depends, is not disturbed. When the master's report is satisfactory it is added to the partial decree before made.

The statute provides that "upon an appeal from a judgment or order, the appellate court may reverse, affirm or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties; and may set aside or confirm or modify, any or all of the procedings subsequent to, or dependent upon such judgment or order, and may, if necessary or proper, order a new trial."

"Under that section," says the supreme court of the state of California, "the appellate court has full power to do, or cause to be done, what, according to the rules of law and equity, ought to have been done in the lower court, as to any or all of the parties plaintiff or defendant": Ricketson v. Richardson, 26 Cal., 155.

If a new trial ought to have been granted by the lower court, the appellate court will reverse the order denying it, and order a new trial.

The statute permits this court to grant a new trial. Now, if a new trial necessarily means a re-examination of all the issues made by the pleadings, what power has this court to remand a case for new trial upon one or more issues, leaving the findings upon the other issues standing?

But that has been, and is, done in California under a similar statute Soule v. Dawes, 14 Cal., 247: Soule v. Ritter, 20 Cal., 522; Marijon v. Pioche, 10 Cal., 545; Jungerman v. Bovee, 19 Cal., 364; Argente v. City, 30 Cal., 464; Billings v. Everett, 52 Cal., 663; Glasscock v. Ashman, id., 422; Watson v. Cornell, id., 91; Le Clert v. Oullahan, id., 254; Phipps v. Harlan, 53 Cal., 87; Evans v. Jacob, 59 Cal., 628.

The statute does not provide in terms that either this or the trial court may grant a new trial of a part of a case, but it permits both to order a new trial.

It does not provide whether the motion shall include the entire case or not. It is evident, however, that the motion should be as broad as the order, but it need not include more.

If, in this case, the trial court could have granted a new trial upon the second and dependent branch of the case alone, had the motion embraced the whole case, it could have done so upon the motion made.

It is idle to contend that the motion must include all the issues, if the court can grant it in part and deny it as to the balance. It would be a vain thing to require the applicant to ask for more than is or ought to be granted.

If counsel for respondent is correct, had the court below ordered a new trial upon the property issues aloue, this court must have

reversed the order, on appeal therefrom, upon the ground that the trial court had not power to make it, although the appellate court could have made the same order, on appeal by appellant from an order refusing to grant a new trial upon that issue.

Unless the statute so provides, would it not be strange if a remittitur should go from the court directing a change in a judgment or order, when, had it been so made and entered below, it would have been reversed on appeal.

It is true that, in Coombs v. Hibberd, 43 Cal., 453, it was held that, when an application for a new trial has been made in due form, upon a settled statement, and the court has passed on the motion denying it, the court can not afterwards vacate the order and grant a new trial, although on appeal from the first order the appellate court might have reversed it and granted a new trial as the district court did.

The court said the plaintiff could not make two successive motions for a new trial upon identical grounds, and that to vacate the order denying a new trial was equivalent to a renewed motion for a new trial; that the time within which a new trial could be applied for was limited by statute, which would be practically enlarged if a new trial could be granted after it had once been refused. In short, it was held that the district court was prohibited by statute from making its second order for the reason given.

So, the same court has held that where the lower court has granted an injunction upon an order to show cause, it cannot afterwards dissolve the injunction, or entertain a motion for that purpose, although the appellate court, on appeal, may reverse the order granting the injunction, and direct it to be dissolved: Natoma Water Co. v. Parker, 16 Cal., 84.

The ground of the decision was that, by statute, the privilege of moving for a dissolution upon the filing of the answer was limited to cases where the injunction was originally granted without notice to the adverse party.

It is patent that those decisions do not militate against appellant's views of the law of this case; for here there is not an intimation in in the statute that the power of the trial court is not co-extensive with that of the appellate court in the matter of granting new trials.

But it is said by counsel for respondent that, under the common law, a new trial could not be granted for a part only of a case, and that the civil practice act provides no different rule, and, consequently, that the common law rule must prevail.

It is not necessary at this time to note the many changes wrought by the code as to court practice. It is enough to say that they are numerous and far reaching. Artificial forms and rules are abolished and simple methods adopted, with the view of dealing out justice between the parties, regardless or any error or defect in the pleadings or proceedings, which shall not affect their substantial rights. It is also true that, under the common law practice, a new trial could not be granted in a civil case at the instance of one of several