The appeal is from an order, granting a new trial, by defendants J. D. R. Stewart and James Morgan.

No verdict was rendered by the jury for or against the defendant Morgan. “A new trial is a re-examination of an issue of fact in the same Court after a trial and decision by *608 a jury, or Court, or by referees.” (C. C. P., § 656.) It may be that there was a mistrial, or no trial, as to defendant Morgan, and that the Court below may hereafter proceed to try the case as to him; but there was no cause for a motion for a new trial, or for an application to vacate the former verdict. (C. C. P„ § 657.)

The notice of motion for new trial is not set forth in the transcript. At the end of the statement on motion for new trial is what purports to be an “Assignment of Errors.” The first assignment has no relation to the case of either of the appellants. The second is, “ Irregularity in the proceedings of the jury, and misconduct of the jury,” etc. When the motion for new trial is made on these grounds, it must be made upon “ affidavits.” (C. C. P., § 648.) In the present case the motion is not supported by any affidavit purporting to set forth facts constituting irregularity or misconduct, within the meaning of these words as used in subdivisions one and two of Section 657.

The third assignment of plaintiff is. “ Nominal and insufficient damages, appearing to have been given by the jury under the influence of passion and prejudice.” Section 657 provides that a new trial may be granted for the cause of “ excessive damages, appearing to have been given under the influence of passion or prejudice.” But there is no provision which authorizes the setting aside of a finding because of the “ passion or prejudice” of a jury, exhibited by the rendition of a verdict for insufficient damages; and as the whole matter is statutory, the last is not proper as an independent ground for setting aside a verdict.

It may be, that, under the fifth statutory ground for a new trial—“ insufficiency of the evidence to justify the verdict”— a party might urge that a jury found against the evidence in finding a less sum than the evidence established as the amount of damages sustained. But in such case the “ statement must specify the particulars in which the evidence is alleged to be insufficient,” and where (as is the case before us) no such specifications are made, the statement “ must be disregarded.” (C. C. P., § 659.)

The fourth and fifth assignments seem to be based upon the last clause of the sixth subdivision of Section 657 of the *609 Code of Civil Procedure; that the verdict “ is against law,” in that the jury did not obey the instructions of the Court in regard to damages. As we understand the case no specific damage was proven. Certain injuries to the person of plaintiff were proved, and the Court charged the jury as follows:

There was no evidence as to the money value of the loss of time or labor by plaintiff; or of any expenses for medical attendance, etc.; or of any diminished capacity to work.

For these things, then, the jury could assume, only, that nominal damages had been suffered. The jury were told, also, that plaintiff was entitled to recover “for bodily pain and mental anguish,” etc., and further, if the assault was “wanton or reckless,” etc., exemplary or vindictive damages.

The jury may have considered the bodily pain and mental *610 anguish unimportant factors in the assessment, and while we may believe that the jury should have found a larger verdict, we cannot say they disregarded the instructions of the Court (even if we assume the fads to show express malice), since, for aught that appears, they did find something by way of exemplary or vindictive damages.

Order reversed and cause remanded.

Eoss and McKee, JJ., concurred.

After the foregoing decision was rendered, a rehearing was had in bank, upon which the following decision was rendered:

We are satisfied with the views expressed by Department One of this Court in its opinion in this case, filed March 20, 1882 (9 Pac. C. L. J. 273), and for the reasons therein given the order appealed from is reversed and the cause is remanded.