Order Granting New Triad—Bill of Exceptions—Review upon Appeal.—If the grounds of the motion for a new trial are such as can he presented only by a bill of exceptions or statement, and the notice calls for a bill of exceptions, and if the bill asked for at the hearing cannot be properly considered, the order should be reversed; but if it can be properly considered, and justifies the order, it must be affirmed.

Id.—Failure to Serve Bill in -Time—Objection Reserved—Presentation upon Settlement—Lapse of Time—Power to Relieve from Default.—Where the proposed bill of exceptions on motion for new trial was not served within the time prescribed by law, and at the time of service objection was reserved on that ground, but the objection was not presented to the court until the bill came np for settlement, one day after the expiration of six months from the time of service, the court had power, upon the presentation of such objection, or within a reasonable time thereafter, upon a proper showing of excusable neglect under section 473 of the Code of Civil Procedure, to relieve the moving party from the default in service.

Id.—Construction of Code—"Proceeding Taken against” Moving Party.—There was no "proceeding taken against” the moving party within the meaning of the code until the objection was presented by the opposing party to the court as a ground for an order against the moving party. The mere reservation of objection to the service did not constitute a "proceeding” within the meaning of the statute.

Id.—Support of Order Granting New Trial—Presumption—Opinion. —Where the order granting a new trial upon the settled bill of exceptions, after the granting of relief from default, was in general terms, not purporting to exclude any grounds stated in the notice, one of which was insufficiency of the evidence to justify the decision, if it is sustainable on that ground, it must be presumed in favor of the order that it was granted for that reason, regardless of any reason stated in the opinion of the trial court.

Id.—Duty of Judge as to New Trial—Effect of Evidence—Presumed Change of Opinion.-—It is the duty of the judge of the trial court to grant a new trial, whenever he is not satisfied with the verdict of the jury, or the findings of the eourt. He is not'bound by the rule as to conflicting evidence; and where insufficiency of the evidence is one of the grounds of the motion it must be presumed in favor of the order granting a new trial that the court changed its opinion as to the effect of the evidence, and reached a conclusion more favorable to the moving party.

Id.—New Trial to Defendant under Cross-Complaint—Sales of Stock upon Margin — Review of Plaintiffs ’ Evidence.—In an action by stock-brokers to recover moneys advanced upon the purchase and sale of stocks, where a new trial was granted to the defendant' upon a cross-complaint alleging that the purchases and sales of stock were upon margin, to be delivered at a future day, in violation of the constitution, the court in determining whether the assailed findings against the defendant were supported by the evidence had the right to consider all the evidence, including that given by plaintiffs in support of their claim, involving the same transactions in respect to which relief was sought by the cross-complaint.

Id.—Probative Findings not Considered—Admissions and Evidence. —The court in determining the sufficiency of the evidence to sustain the findings assailed was not required to consider probative findings not assailed, but the question is to be determined upon the admissions of the pleadings and the evidence given upon the trial.

Id.—Sufficiency of Evidence to Show Sales upon Margin.—Upon a review of the evidence in the record, it is held sufficient to warrant an inference and to support findings by the trial court that purchases and sales of stock, advances upon which were sought to be received by plaintiffs, were purchased and sold by plaintiffs upon margin to be delivered at a future day, as alleged in defendant’s cross-complaint.

lb. — Admissions in Claim Presented by Plaintiffs. •—• Admissions made by the plaintiffs in their verified claim first presented against the estate of the deceased testator (after the rejection of which a second claim in different terms was presented, which was sued upon) was admissible," and might be considered by the court as an admission against interest in granting the new trial.

Appeal from Judgment-—Review — Error in Record as to Variance.—Upon appeal from the judgment, it is held to be an error of the court to conclude that there was such a variance' between the facts set forth in the second claim, on which the action was brought, and the facts proven by plaintiffs and found by the court, as to preclude a recovery. There was no material variance; but the cause of action established by the findings is the same as that attempted to be set out in the claim and the complaint, neither of which showed a prohibited transaction.

Id.—Sufficiency of Claim against Estate.—A claim against an estate is not required to state the facts with all the preciseness and detail required in a complaint, and its sufficiency is not to be tested by the rules of pleading. The claim in this ease was not invalid upon its face.

Id.—Reversal of Judgment—Mew Trial.—In reversing the judgment this court has power to order a new trial of the issues between plaintiffs and defendant; and, this court having affirmed an order granting a new trial involving a question of fact'as to the validity of the plaintiffs ’ claim, it is a proper case for granting such new trial rather than to order a judgment for the plaintiffs, which might work an unjust conclusion.