Foster v. National Ice Cream Co. — 29 Cal. App. 484

Majority

p. 484

[Civ. No. 1726.

First Appellate District.

January 28, 1916.]

W. J. FOSTER, Respondent, v. NATIONAL ICE CREAM COMPANY, Appellant.

Headnote

New Trial—■ Newly Discovered Evidence — Requirements of Affidavit.—In support of a motion for a new trial on the ground of newly discovered evidence, it is incumbent on the moving party to show the diligence employed in preparing for the first trial, how the alleged new evidence was discovered, and why it was not discovered before the first trial, and such other facts as will make it clear to the court that the failure to produce the alleged newly discovered evidence and present it at the first trial of the case was not attributable to the fault or want of diligence of the party, and where the affidavit fails to show these things, it is insufficient.

APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. William H. Donohue, Judge.

The facts are stated in the opinion of the court.

George K. Ford, for Appellant.

H. L. Breed, and Walter J. Burpee, for Respondent.

This is an action for goods sold and delivered. Judgment was entered against the defendant. Its motion for a new trial was denied, .and the appeal is from the judgment and the order. The only point made in support of the appeal is that the court erred in denying the motion for a new trial, because the allegation of the defendant’s affidavit filed in support thereof asserting the existence of newly discovered evidence was uncontradicted. Conceding this to be so, there was no showing in the affidavit referred to of due diligence on the part of the defendant which would warrant the granting of a new trial on the ground of newly discovered evidence.

This was conceded at the oral argument. In support of its motion for a new trial upon the ground of newly discovered evidence, it was incumbent upon the defendant to show the diligence employed by it in preparing for the first trial, how the alleged new evidence was discovered, and why it was not

p. 485

discovered before the first trial, and such others facts as would make it clear to the court below that the failure to produce the alleged newly discovered evidence, and present it at the first trial of the case, was not attributable to the fault or want of diligence of the defendant. The affidavit presented in support of the motion for a new trial was clearly deficient in the particulars just stated, and, therefore, in so far as the ground of newly discovered evidence was concerned, a new trial was rightfully refused.

No error appearing upon the face of the record before us, it is ordered that the judgment and order appealed from be affirmed.