Love v. Watts — 1 Cal. Unrep. 24

Majority

p. 24

HARRY LOVE, Admr., Respondent, v. DAVID WATTS et al., Appellants.

No. 1038;

May 12, 1856.

Headnote

Appeal — Evidence not in Record. — A Judgment by the Court upon evidence submitted by the plaintiff in default of the defendant’s appearance, such evidence not being made a part of the record, is conclusive on appeal.

New Trial — Conflicting Evidence. — Affidavits of Counsel filed with a motion for a new trial and the counter-affidavits filed by the opposing counsel may go to make up conflicting testimony within the rule against disturbing the trial court’s order disposing of such a motion, when based upon conflicting testimony.

APPEAL from Superior Court, San Francisco County.

Howard & Perley for respondent; William White for appellants.

— This cause was tried below by the court. The defendant failing to appear, the plaintiff proceeded to introduce evidence, upon which a judgment ivas rendered. There is no statement of the evidence in the record. The finding of the court is therefore conclusive as to the facts, and is amply sufficient to support the judgment. The only question is whether the refusal of the court to grant a new trial on affidavit of counsel for defendant was such an abuse of discretion as would warrant a reversal of the judgment. We think not. Every material averment in the affidavit was controverted by counter-affidavits. It was then a case of conflict of evidence, and as many of the facts stated on the one side and denied on the other were necessarily within the knowledge of the judge who tried the cause, he was more competent to decide correctly as to the issue raised than we, who are strangers to the proceedings.

The judgment is affirmed, with costs.

I concur: Murray, C. J.