Malone

This appeal was taken by plaintiff from an order granting the defendants’ motion for a new trial.

The action was brought against John G. Bosch and his wife, to foreclose a mortgage upon the homestead of the defendants. The homestead had been duly selected prior to the execution of the mortgage. Both defendants were served with the summons, but the wife did not appear in the action, and her default was not entered. The husband appeared and answered, setting up the homestead character of the premises, and denying the validity of the mortgage. A copy of the mortgage was set out in the complaint, showing that it was acknowledged by both husband and wife on the seventeenth day of August, 1885, before R. G. Knox, a court commissioner of the superior court of Del Norte county. It is contended that court commissioners at that date had no authority to take and certify acknowledgments.

No separate document designated “ findings” was signed by the judge, but in the decree which was signed by the judge it is stated that the court finds all the averments of the complaint to he true. Nothing is said about the averment of the homestead in the answer.

The new trial was granted upon two…