Majority
Headnote
New Trial. — A Failure to Prosecute a Motion for a New Trial is to be regarded as an abandonment of it, and an order, made upon application of the opposing party in such a case, refusing the new trial, is to be upheld.— The appeal in this case is from the order refusing a new trial and from the final judgment. The motion for the new trial was refused on the application of the plaintiff, no one appearing on behalf of the defendant in its support. The failure thus to prosecute was a virtual abandonment of the motion, and the order made thereon was not, upon the authority of Mahoney v. Wilson [ 15 Cal. 42 ], decided at the January term, and of Frank v. Doane [ 15 Cal. 302 ], decided at the present term, a subject of review in this court. Upon the appeal from the final judgment there is no statement, and the ease before us rests, therefore, upon the judgment-roll, and as this discloses no error, an affirmance of the judgment must follow; and such affirmance is ordered.
We concur: Baldwin, J.; Cope, J.
Cases cited
- Mahoney v. Wilson 15 Cal. 42 p. 86
- Frank v. Doane 15 Cal. 302 p. 86