McCarran, C. J., concurring save to reverse the judgment. I say this because the defendant, seeking to comply with the rule as laid down in the McComb case, attempted to challenge the grand jurors before the indictment was found. By the rule of the McComb case, this was the proper and only course. The trial court denied appellant this privilege. By the rule in the McComb case, he could not thereafter take advantage of the right to challenge. Hence he was cut off from a statutory right vital to his interests. It is manifest from the record that the trial court overlooked the rule in the McComb case and sought to permit the appellant to interpose his challenge to the individual members of the grand jury after the indictment had been filed against him, under subdivision 4, section 7090, Revised Laws. The prevailing opinion here must close its eyes to the majority opinion in the McComb case, otherwise the case must be reversed. Indeed, I look forward to the time when this court will reverse the position taken by the majority of the court in that case. Trial courts should not hazard reversal in matters of this character, when the letter and spirit of the statute is so manifest. Had the appellant on the occasion of his motion to quash taken advantage of the opportunity afforded by the trial court, and had he then established the fact that prior to the finding of the indictment certain designated members of the grand jury were possessed of a state of mind with reference to the defendant, or to the case, which prevented them from acting impartially and without prejudice to the substantial rights of the defendant, the case must necessarily have been reversed. Argument for Appellant [No. 2170] JOHN SAVAL, APPELLANT, v. PHIL BLUME, RESPONDENT. [168 Pac. 909] 1. APPEAL AND ERROR - ORDERS APPEALABLE MOTION FOR NEW TRIAL. REFUSING TO HEAR Under Rev. Laws, 5329, providing that appeal may be taken from any special order made after final judgment, an order refusing to hear a motion for a new trial is appealable. 2. NEW TRIAL-MOTIONS--REQUISITES AND SUFFICIENCY. Rev. Laws, 5323, provides the party intending to move for a new trial must, within five days after any verdict, or within ten days after a decision of the court or referee, file with the clerk, and serve upon the adverse party, a notice of his intention, designating the grounds upon which the motion will be made and whether upon affidavits or upon the minutes. Section 5320 provides that the former verdict or other decision may be vacated, and a new trial granted, for "insufficiency of the evidence to justify a verdict or other decision, or that it is against law." Section 5321 provides that in an application for a new trial it shall be sufficient to state one or more grounds as specified in the preceding section, provided that, when the application is made upon subdivisions 1, 2, 3, or 4 of the preceding section, it must be supported by affidavit. In all other cases it must be made upon the minutes of the court. Held that, as motion for a new trial for insufficiency of evidence can be made only on the minutes of the court, a motion for new trial "on the ground of insufficiency of the evidence to justify the decision, judgment, and findings of fact and conclusions of law" is sufficient, although it failed to state that the motion would be made on the minutes of the court. APPEAL from Sixth Judicial District Court, Humboldt County; E. E. Winters, Judge. Action by John Saval against Phil Blume. From order refusing to hear motion for new trial, plaintiff appeals. Reversed and remanded. Salter & Robins, for Appellant: This is an appeal from an order of the district court refusing to hear plaintiff's motion for a new trial for the reason that the notice of intention to move for a new trial was void. The notice of intention was regular in all respects, except that it did not state that the motion would be made "upon the minutes of the court." Under our statutes, this defect is extremely technical, and not Argument for Respondent If an in any way calculated to mislead the defendant. appellant wishes to move for a new trial upon the ground of "insufficiency of the evidence," his motion "must be made upon the minutes of the court," and not otherwise; there is no other way. Such an expression in a notice of intention under the laws of the State of Nevada is mere surplusage. (Rev. Laws, 2321; 36 Cyc. 1158; 29 Cyc. 937.) Opposing counsel admit that we are entitled to be heard, and suggest relief by way of writ of mandate. Such would not be the proper remedy. (Rev. Laws, 5696; Floral Springs v. Rives, 14 Nev. 431; State v. Boerlin, 30 Nev. 474; State v. Board, 32 Nev. 263; State v. Langan, 91 Pac. 737; State v. Curler, 4 Nev. 445. ) T. A. Brandon, for Respondent: Appellant has no remedy by appeal; his remedy is by mandamus. Even admitting the right of appeal, the ruling of the lower court should be sustained. The fact that the lower court refused to act for the reason that the notice of intention was fatally defective, the court believed itself without jurisdiction in the matter. Under the circumstances, mandamus is the proper remedy. (Floral Springs W. Co. v. Rives, 14 Nev. 431.) The notice was fatally defective. The statute provides what the intention to move for a new trial must contain, and the language is mandatory. (Rev. Laws, 5323.) This statute was adopted from other states, which have declared its provisions to be mandatory, the construction being adopted with the statute. (Hughes v. Alsip, 44 Pac. 1027.) "When a statute is passed authorizing a proceeding which was not allowed by the general law before, and directing the mode in which an act shall be done, the mode pointed out must be strictly construed." (Lewis, Sutherland, Stat. Const., vol. 2, 2d ed. p. 1135.) Appellant must elect to stand on the original or the amended notice of motion. He unquestionably elected to stand on the amended notice. The amended notice was filed long after the waiver of written notice of the decision, which waiver was at the time appellant attempted Opinion of the Court-McCarran, C. J. to file his first so-called notice of intention, and therefore the amended notice of intention came too late. (Cooney v. Furlong, 6 Pac. 388; State v. Mason, 45 Pac. 557.) By the Court, MCCARRAN, C. J.: This is an appeal from an order refusing to hear a motion for a new trial. Respondent contends that an appeal from such an order will not lie. Hence we are called upon primarily to determine that question. Section 5329, Revised Laws (section 387, C. P.), provides : * (2) * "An appeal may be taken: From any special order made after final judgment, within sixty days after the order is made and entered in the minutes of the court." Respondent contends that that is not an appeal from an order of any kind; that no order was made by the lower court; that all that the lower court did was to refuse to act. The order of the trial court was one sustaining respondent's objection on the ground "that no notice thereof was given as prescribed by law." 1. The motion for a new trial was a necessary step in the proceeding in order to have the court of review pass upon the question of the sufficiency of the evidence to sustain the judgment. Respondent objected to the hearing of appellant's motion for a new trial. The court, pursuant to the objection of respondent, entered an order refusing to hear appellant's motion. This was a special order made after final judgment (Central Telephone Co. v. Holmes, 30 Nev. 440, 97 Pac. 390); hence under the statute it was one from which an appeal to this court will lie. 2. Did the trial court err in its order refusing to hear the appellant's motion for a new trial? The notice of motion filed and served by appellant was in part as follows: "You and each of you will please take notice that the plaintiff in the above-entitled action intends to and will move the above court to set aside and vacate the judgment, decision, and finding herein before made in said Opinion of the Court-McCarran, C. J. cause, and to grant a new trial herein, and on the ground of the insufficiency of the evidence to justify the decision, judgment, and findings of fact and conclusions of law made, entered, and filed herein." An amendment to this notice was later filed. Respondent, through his attorneys, objected to the hearing, argument, and submission of plaintiff's motion for a new trial, the principal ground of objection being that inasmuch as the notice of motion for new trial failed to set forth that the motion would be based upon the minutes of the court, it was therefore defective and could not be considered by the court. We shall deal entirely with the motion for a new trial as originally made, disregarding all of the matters pertaining to the amendment. Section 5323, Revised Laws, provides: "The party intending to move for a new trial must, within five days after the verdict of the jury, if the action was tried by jury, or within ten days after notice of the decision of the court, or referee, if the action was tried without a jury, file with the clerk, and serve upon the adverse party, a notice of his intention, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or upon the minutes of the court." Appellant moved for a new trial "on the ground of the insufficiency of the evidence to justify the decision." The lower court held this notice insufficient, inasmuch as it failed to state that the motion would be made upon the minutes of the court. Section 5320, Revised Laws (sec. 378, C. P.), provides: "The former verdict or other decision may be vacated, and a new trial granted on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: * * (6) Insufficiency of the evidence to justify a verdict or other decision, or that it is against law." The next succeeding section (section 5321, Rev. Laws; section 379, C. P.), provides: "In an application for a new trial, it shall be sufficient |