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Esert v. Glock

137 Cal. 533 Court Department One. Decision date 1902-10-27 Docket S. F. No. 2331 English

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p. 533
[S. F. No. 2331.
Department One.
October 27, 1902.]
KATHERINE ESERT, Appellant, v. CLARA GLOCK et al., Respondents.

Headnote

Order Granting New Trial—Newly Discovered Evidence—Appeal-Affidavits not Authenticated—Presumption.—Upon appeal from an order granting a new trial solely on the ground of newly discovered evidence, where the affidavits used upon the motion are not incorporated in a bill of exceptions, as required by rule XXIX of this court, affidavits merely printed in the transcript will not be considered, and it must be presumed that the affidavits used upon the motion were sufficient to justify the order.
APPEAL from an order of the Superior Court of the City and County of San Francisco granting a new trial. John Hunt, Judge.
The facts are stated in the opinion.
A. Morgenthal, for Appellant.
Naphtaly, Friedenrich & Ackerman, for Respondents.

The court below granted defendants’ motion for a new trial solely upon the ground of newly discovered evidence. This appeal is by plaintiff from the order. There is no bill of exceptions, nor proper authentication of the record as to the affidavits used on the said motion. There are two affidavits printed in the transcript, but we cannot say that they were the affidavits, and the only affidavits, used on the motion.

After the decision of Somers v. Somers, 81 Cal. 608 , this court adopted rule XXIX, which provides: “In all cases of appeal to this court from the orders of the superior courts, the papers and evidence used or taken on the hearing of the motion must be authenticated by incorporating the same in a bill of exceptions, except where another mode of authentication is provided by law,” .

The rule has been adhered to in so many cases on appeal here since that it is needless to cite them.

p. 534
Having no authenticated record as to the affidavits used on the motion, we must presume that they were sufficient" to justify the order. It should therefore be affirmed.

Gray, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the order is affirmed.

Harrison, J., Van Dyke, J., Garoutte, J.

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