3 Cal. 113 | Cal. | 1853
delivered the opinion of the court. Heydenfeldt, Justice, concurred.
The affidavit on which the motion for a new trial, on the ground of surprise and newly discovered evidence, was based, was insufficient.
From aught that appears to the contrary, the cause was noticed for trial in due form, and at a proper time, and was
The affidavit is equally insufficient to sustain the other ground upon which a new trial was asked. It does not show that the evidence claimed to be newly discovered, was discovered since the trial, nor in what particular such evidence was material, nor what important fact it would tend to establish, nor that due diligence was used, nor why it could not with reasonable diligence have been discovered and produced at the trial of the cause; all of which facts should have been affirmatively shown by the applicant. Daniel v. Daniel, J. Marshall’s Reports, 52; Graham on New Trials; and Bartlett v. Hogden, Cal. Sup. Court, Jan. Term, 1853.
It is not pretended that the facts which it is alleged could be proved by the testimony of Taylor, constituted the newly discovered evidence relied upon, nor that any diligence was exercised to obtain his evidence, either through an application for a commission to take his deposition or otherwise. We are therefore of opinion, not only that the court below properly refused the motion, but that the appeal is entirely without justice, and frivolous, and, as appears to us, was only made for delay.
The judgment of the court below is affirmed, with costs, and ten per cent, damages upon the amount of the judgment, to be added to said amount when ascertained.