The opinion
SHINN, J., concurring.
I concur. I am in agreement with all that is said in the main opinion including the conclusion stated.
There is an additional reason which in my opinion requires us to hold that there was no deficiency in the proceedings for a new trial which prevents us from recognizing insufficiency of the evidence as the ground upon which the order granting a new trial was based. I am unable to see that the provision of section 657, Code of Civil Procedure, which requires that an order granting a new trial upon the ground of insufficiency of the evidence shall so state, has any application to an order granting such a motion which has been noticed and presented upon that ground alone.
By the several amendments of the section certain definite procedural improvements have been accomplished through the elimination of practices which had proven themselves to be unsatisfactory. These are pointed out in the main opinion and I shall refer to them but briefly. It was desired to remove all uncertainty in the consideration of appeals from orders granting new trials as to whether such orders had been granted upon the ground of insufficiency of the evidence. That objective was attempted to be reached by the amendment of 1919 and was accomplished by the amendment of 1929. The uncertainty that had theretofore existed arose from the failure to state in orders granting new trials whether insufficiency of the evidence was one of the grounds or the sole ground for the order. Of course there never was any uncertainty *401 in situations in which insufficiency of the evidence was'specified in the notice of intention as the sole ground of the motion, which is the one before us. The order and the notice of intention must be read together. The notice of intention is deemed to be the motion upon all grounds specified in the notice. (Code Civ. Proc., sec. 659.) The notice is the first step in the proceeding and is essential to give the court jurisdiction to grant a new trial, and to it the court must look for a statement of the grounds which may be considered and acted upon by the court in granting the motion. Where it appears that there was a notice specifying legal grounds it will not be presumed that the court granted the motion upon a ground not specified in the notice or upon no ground whatever. The same presumptions as to regularity of procedure apply to orders as apply to judgments or other judicial acts. (Code Civ. Proc., sec. 1963, subds. 15, 16; Galvin v. Palmer (1901), 134 Cal. 426 [ 66 Pac. 572 ].)
It is almost invariably the case that several grounds are stated in the notice, including insufficiency of the evidence, and it was due to this widely used practice that the amendments of 1919 and 1929 were considered necessary for the purpose of removing uncertainty as to the basis of the orders in such cases. The fact that it was not essential that corrective legislation be provided for those cases where no uncertainty existed does not necessarily limit the scope of the amendments but it does aid materially in ascertaining what the purpose and intention of the legislature were in amending the section. Where one construction of a statute will attribute to the legislature reasonable and purposeful motives and another will lead to absurd and unjust consequences which the legislature could not have reasonably or fairly intended to bring about, it is our duty to adopt the first construction if we can do so without exercising the forbidden legislative function. If we should hold that the amendments were intended to apply to the facts before us, where the sole ground of the motion was insufficiency of the evidence (laying aside for the moment the holding of the main opinion that the record shows full compliance), we would have to say that notwithstanding the indisputable fact that the motion was granted upon the sole ground of insufficiency of the evidence, it will be conclusively presumed that it was not. We would then have to reverse the order, not because of any uncertainty *402 or deficiency of the record to speak the truth, but because we would have decided that the legislature, through ignorance or indifference, had imposed upon the courts a wholly superfluous formality of procedure which not only bordered upon the absurd, but served no purpose, accomplished no improvement over established practices, either by the correction of existing evils or otherwise, substituted fiction for fact in the courts’ records, multiplied instead of reducing the opportunities for clerical errors, and without reason or necessity unjustly deprived a litigant of a substantial right. I cannot believe that the legislature intended anything of the sort. Awareness of the fact that the legislative function has taken on a vastness of proportion and complexity hitherto unknown should restrain the courts from holding to too narrow a conception of their own powers of interpretation and should incline them to be as helpful as possible in forwarding the obvious purposes of remedial legislation.
These, in brief, are the reasons which have inclined me to the opinion that the requirement that the ground of insufficiency of the evidence must be stated in the order was not intended to apply to a case where such specification already appears in the record.
It seems unnecessary to cite or discuss the several rules of statutory construction which have application to such a situation. I know of none which under a fair application would require this court to reach a conclusion contrary to the one herein expressed. They all harmonize with the fundamental rule stated by Mr. Justice Field in United States v. Kirby (1869), 7 Wall. 482 [ 19 L. Ed. 278 ], that “General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the Legislature intended exceptions to its language which would avoid results of this character. The reason of the law, in such cases, should prevail over its letter.” General terms only are before us for construction. The duty of recognizing a proper occasion for an exception to those general terms furnishes the reason for this separate concurrence.
The requirement as to making the order a matter of record within ten days after it is made, which of course can only be done in writing, as in the case of all orders, applies to the present case only to the extent that it places a limit of time upon the act of completing the record in the new trial pro *403 ceeding. Too often that had been done under the former practice through the medium of nunc pro tunc orders made long after the time had elapsed for ruling upon the motion, the evil of which, as stated in the main opinion, led to the amendment of 1939. However, it means no more in cases of the class we are considering than that an order consisting of a direction of the judge to the clerk, if such could be called an order, cannot remain in the embryo state of a mere good intention for more than ten days. The order now before us was entered promptly, and had it been couched in general terms, without specifying insufficiency of the evidence, it would have been sufficient to comply with the requirement as to filing, as well as with the requirement for specification of the ground therefor, when read with the notice of intention.
Appellants’ petition for a hearing by the Supreme Court was denied March 27, 1942.