No. 2,229.

#### A. C. HAWKINS, Respondent, *v.*CURTIS ABBOTT *et al.,*Appellant.

Pbactice. — Judgment -without Seevice oePeocess oeAppeabance. — A judg. ment against a person not served with process, and wIlo entered no appearance in the action cannot be sustained.

Pbactice on Appeal. — New Teial. — Specification op Eeeoe. — When a motion for a new trial is made on a statement, no point will be considered by the Court, and no alleged error will be noticed, unless it is specified under one of the grounds of the motion.

Idem. — Appellant’s Points. — The appellant’s points should accord with oi be substantially the same as the specifications in the statement; or should result legitimately from such of these as presentthe same question.

Idem. — Peepondebating Evidence. — Conplicting Evidence. — If the evi. denee clearly preponderates against the verdict or finding, it is the duty of the Court below to set it aside, but the Appellate Court will not disturb the verdict or finding when the evidence is conflicting

Appeal from the District Court of the Seventh District, County of Solano.

This is an action brought by tbe plaintiff to obtain dissolution of partnership and, settlement of account between plaintiff and defendant. .

Plaintiff alleges formation of copartnership in 1863 for tbe purpose of trading in cattle; alleges tbe accumulation of tlie profits of said partnership to be five thousand dollars, tbirty-five hundred of which is in a note held by defendant against one Robert Allison; asks an injunction against defendant restraining him from the transfer of said note, and also against Allison from paying the same to de*640fendant or bis assignees, and for tbe appointment of a receiver to take charge of tbe note.

Tbe answer denies all tbe material allegations and sets up a counter claim.

An injunction was awarded in accordance witb tbe prayer of tbe complaint, wbicb was duly served on Allison by tbe Sheriff of Solano county.

Judgment was rendered in favor of plaintiff for a dissolution of tbe partnership, and for tbe recovery of one half of tbe net profit of tbe partnership, amounting to $1,701, part of tbe Robert Allison note, or its proceeds, and proportionally of tbe interest due thereon and cost of suit, $531, further ordering tbe said Robert Allison to pay into, tbe Court $1,701 of said note, and proportionally of tbe interest due thereon, and also tbe further sum of *$531*cost of suit; further ordering that a copy of tbe decree be served upon tbe defendant, and said Allison, and requiring them respectively to comply witb tbe terms thereof within twenty days from tbe day of such service, in default of wbicb they were to be deemed guilty of a contempt of Court.

Tbe other facts are stated in tbe opinion.

Defendant moved for a new trial.

Tbe Court over-ruled tbe motion and tbe defendant appealed from tbe judgment, and from tbe order denying tbe motion for a new trial.

Robert Allison appealed from tbe judgment.

*Wm. S. Wells,*for Appellant.

*L. 0. Hays*and *Pendegast & Storey*for Respondent.,

Rhodes, C. J.,

delivered tbe opinion of tbe Court, Wallace, J., Temple J., and Obookett, J., concurring:

Tbe judgment against Allison cannot be sustained, because be was neither served witb tbe process, nor was bis appearance in tbe action entered.

*641Tbe other points presented by tbe defendant Abbot, re- ■ late to bis motion for a new trial. -When tbe motion is made on a statement, no point will be considered and no alleged error will be noticed, unless it is specified under one of tbe grounds of tbe motion. An argument in sueb case, in wbicb tbe merits of tbe cause of action or of tbe defense are presented, is of no service to tbe Court, unless it legitimately arises upon one or more of tbe specifications in tbe statement. Tbe appellant’s points should accord with, or be substantially tbe same as tbe specifications in tbe statement; or at least should result from two or more of them, wbicb present tbe same question. It is often tbe case, that it is proper to specify in tbe statement, tbe particulars in wbicb tbe evidence is insufficient to sustain tbe verdict, or tbe finding of any fact, when tbe evidence in that respect is conflicting; for if tbe evidence clearly preponderates against tbe verdict or finding, it is tbe duty of tbe Court below to set it aside. But it is useless to present to tbe Appellate Court a point based on such specification; for tbe verdict or finding will not be set aside where tbe evidence on tbe point in controversy is conflicting. Under tbe ground that tbe evidence is insufficient to justify tbe findings in this case, there are many specifications; but tbe evidence in each of tbe particulars mentioned was conflicting, except in tbe fourth and ninth, and in those two, tbe facts mentioned are immaterial. Tbe specifications, under tbe ground that tbe findings are against law, cannot be sustained. They present principally questions of fact or questions of law and fact combined, and it does not appear that tbe decision of tbe Court was adverse to tbe propositions of law laid down in tbe specifications.

Judgment as to Allison reversed, and as to Abbot affirmed.