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their failure to agree upon the bill.-Slye v. Hunt, 29 Cal. App. 117, 154 Pac. 607.

18. Record, contents of.–Upon an appeal from an order denying a new trial the insufficiency of the evidence to justify the verdict of the jury or the findings of the court can not be considered, where it appears from the certificate of the trial judge attached to the bill of exceptions that the bill does not contain all the evidence, since it must be presumed in such a case that had all the evidence been presented therein, it would appear therefrom that it was suffcient to justify both the verdict and findings.-Foster v. Young, 172 Cal. 317, 156 Pac. 476.

19. Alleged error in refusing to grant a new trial upon the ground of newly discovered evidence likewise can not be considered, where the affidavits presented on the hearing of the motion in support thereof are not incorporated in the record.—Foster v. Young, 172 Cal. 317, 156 Pac. 476.

20. Alleged error predicated upon the giving to the jury of certain isolated instructions and in refusing to give certain requested instructions can not be considered on appeal from an order denying a new trial, where the given instructions are not incorporated in the record. Foster Young, 172 Cal. 317, 156 Pac. 476.

ARTICLE II.

NEW TRIALS.

8 660. Motion to be heard at time specified, or dismissed.

of

8 656.

-Order affirmed when.—Upon an ap

peal from an order granting a new trial, 1. New trial-Construction of section.

if it is found that the trial court erred in This section does not define what is meant

granting the motion, so far as the grounds by a trial.-San Joaquin & Kings River

upon which the court based the order are Canal & Irr. Co. v. Stevinson, 30 Cal. App.

concerned, and that the new trial should 405, 158 Pac. 768.

have been granted because of some other 2. The question whether the judgment

ruling on a question of law, which the trial is authorized by the pleadings or findings

court believed was not erroneous, the order can not be agitated on the motion for a

will be affirmed. - Steil v. Sun Insurance new trial, for it is not involved in a re

Office, 171 Cal. 795, 155 Pac. 72. examination of the issues of fact. --Bloxham

5. When no abuse of discretion is shown, v. Tehama County Tel. Co., 29 Cal. App. 326,

the granting of an order granting a new 155 Pac. 654.

trial will not be disturbed on appeal.-MC

Ewen v. Occidental Life Ins. Co., 172 Cal. 6, 8 657.

155 Pac. 86. NEW TRIAL-GRANTING OF.

6. An order granting a new trial must 1. Construction of section.

be affirmed, without regard to the ground 2, 3. Discretion of court.

upon which it is specifically based, if it 4-8. -Order affirmed when.

could be rightfully granted upon any of the 9, 10. Grounds of - Excessive damages (subd.

grounds upon which the motion was made; 5).

such rule, however, is subject to the excep11-17. -Insufficiency of evidence (subd. 6).

tion that in passing upon the correctness 18–31. —Newly discovered evidence (subd.

the order granting a new trial the 4).

appellate court may not consider the in32, 33. —Verdict against law.

sufficiency of the evidence when the lower

court "by direct language" expressly ex1. Construction of section. - The provi- cludes that ground as a basis for its order. sions of the code relating to new trials are -Meinberg v. Jordan, 29 Cal. App. 760, 157 not applicable to a judgment entered on Pac. 1005. motion against a surety on an undertaking 7. An order granting a new trial must given to stay execution on judgment be affirmed without regard to the ground pending appeal.-Gray v. Cotton, 53 Cal.

upon which it is specifically based if it Dec. 98, 162 Pac. 1019.

could be rightfully granted upon any of the 2. Discretion of court.--Motions for new grounds upon which the motion was made, trial are addressed to the sound discretion subject, however, to the exception that in of the trial court, and its action will not passing upon the correctness of the order be disturbed unless the record shows an the appellate court may not consider the abuse of such discretion, the presumption insufficiency of the evidence when the lower being that the discretion was properly ex- court by direct language expressly excludes ercised.-People v. Kilfoil, 27 Cal. App. 29, such ground as a basis for its order.-Mein148 Pac. 812.

berg v. Jordan, 29 Cal. App. 760, 157 Pac. 3. In the granting of a motion for a new 1005. trial, the trial judge has a very broad dis- 8. An order granting a new trial will not cretion, and the order will be upheld on be disturbed upon appeal save upon a showappeal if it may be supported upon any ing of an abuse of the discretion vested of the assigned grounds.-Miller v. Logan, in the trial court.-Meinberg v. Jordan, 29 32 Cal. App. 28, 161 Pac. 1022.

Cal. App. 760, 157 Pac. 1005.

a

а

Grounds of-Excessive damages (subd. but in duty bound, on motions for a new 5).--The mere fact that a verdict is exces- trial, to scrutinize the evidence carefully, sive because of the inclusion therein of in cases where claimed to be insufficient, improper items does not show that it was and to grant new trials whenever, in its the result of passion and prejudice.—Conlin opinion, the evidence on which the decision V. Emanuel Lewis Invest. Co., 26 Cal. App. or verdict was based is insufficient to justify 388, 147 Pac. 472.

the conclusion.—Estate of Bainbridge, 6 Cof, 10. An order granting a new trial upon Prob. Dec. 308. "the sole ground that the damages awarded 18. -Newly discovered evidence (subd. to the plaintiff

are excessive," car- 4.)-A party is not entitled to a new trial on ries with it the implication that it was the ground of newly discovered evidence if granted upon a consideration of the insuffi- he had information which would have enciency of the evidence to warrant and sup- abled him to obtain the evidence before port the finding of the jury as to the amount trial, and had full information relative to of such damage.-Meinberg v. Jordan, 29 the evidence before the trial closed, and yet Cal. App. 760, 157 Pac. 1005.

did not apply for a continuance to enable 11. -Insufficiency of evidence (subd. 6). him to obtain the evidence.-Champagne v. -In the determination of a motion for a Hamburger, 169 Cal. 683, 147 Pac. 954. new trial, the verdict should be set aside 19. The courts look with distrust and disif, in the opinion of the trial court, it is favor upon motions for new trials based not supported by sufficient evidence; and on the ground of newly discovered evidence, this is equally true whether there be an and such motions should not be granted absence of evidence or that the evidence by trial courts unless the new evidence is received, in the individual judgment of the such as to make it reasonably probable that trial judge, is lacking in probative force to it would change the result upon another establish the proposition of fact to which trial.-Estate of Emerson, 170 Cal. 81, 148 it is addressed. This is the meaning of the Pac. 523. terms "insufficiency of evidence" (C. C. P., 20. A new trial should be granted on the $ 657, subd. 6) and “.

contrary to

ground of newly discovered evidence only evidence" (Pen. Code, $ 1181, subd.

where such evidence is of a character as to 6).-Estate of Bainbridge, 169 Cal. 166, 146

render a different result probable, and the Pac. 427.

question as to the effect upon the case of 12. A court is under compulsion to order such evidence is, from its nature, peculiarly

new trial and may do this of its own one that is addressed to the discretion of motion when the evidence is wholly insuffi- the trial court.-People v. Oxnam, 170 Cal. cient to sustain the verdict.-Estate of Cas- 211, 149 Pac. 165. par, 172 Cal. 147, 155 Pac. 631.

21. A motion for a new trial on the 13. The court may grant a new trial

ground of newly discovered evidence is propeven when there is substantial evidence

erly denied where, in the opinion of the to sustain the verdict if it believes that the trial court, it is not probable that the addievidence preponderates against the verdict. tional evidence would have produced a dif-Estate of Caspar, 172 Cal. 147, 155 Pac. 631.

fèrent result.-Atkinson v. Western Devel. 14. In an action for damages for personal Syndicate, 170 Cal. 511, 150 Pac. 363. injuries a trial court, if of the opinion that 22. Motions for a new trial, based upon under the evidence the amount awarded the ground of newly discovered evidence, by the jury is not legally adequate or com- are not favorably regarded by courts, and mensurate with the extent of the injuries appellate tribunals do not disturb the action received, may grant a new trial on the of a trial court in refusing to grant such motion of the plaintiff on the ground that a motion, except where it clearly appears the evidence does not justify the verdict. -- that there has been an abuse of discretion.Taylor v. Northern Elec. R. Co., 26 Cal. App. Fresno Estate Co. v. Fiske, 172 Cal. 583, 765, 148 Pac. 543.

157 Pac. 1127. The judge should, in order to war- 23.

A new trial is not to be granted upon rant an order for a new trial, believe that the tardy production of evidence not availthe verdict is not sustained by the evidence, able at the trial because of the absolute and that if allowed to stand it will result forgetfulness of a witness.-Fresno Estate in unjust punishment being inflicted, and Co, v, Fiske, 172 Cal. 583, 157 Pac. 1127. so believing, it becomes his duty to order 24. The refusal to grant a new trial on a new trial, and such an order will not be the ground of newly discovered evidence is disturbed unless an abuse of discretion is not erroneous, where it is not sufficiently made manifest.-People v. Mallicoat, 27 Cal. shown that the testimony could not have App. 355, 149 Pac. 1000,

with reasonable diligence been procured at 16. Upon a motion for a new trial in an the trial, and that it was in its nature action for damages for personal injuries, the cumulative.--People v. Davis, 26 Cal. App. probative force and effect of the evidence 647, 147 Pac. 1185. as to the nature and extent of the injuries 25. It is not an abuse of discretion to and the damages resulting therefrom are for refuse to grant the defendant's motion for the determination of the trial court, not- a new trial on the ground of newly discovwithstanding there is no conflict in the ered evidence consisting of a statement evidence on the subject.—Meinberg v. Jor- made by the prosecutrix to the district dan, 29 Cal. App. 760, 157 Pac. 1005.

attorney about a month before the case was 17. The trial court is not only authorized tried, where it appears that such statement

15.

came into the hands of the defendant's jection that the action should have been counsel after the prosecution had rested its brought by the husband of the plaintiff can case and before the close of the evidence.- not be considered, where the cause was People v. Kilfoil, 27 Cal. App. 29, 148 Pac. tried on the pleadings as they stood without 812.

objection to the evidence in support thereof. 26. An order denying a motion for a new Bloxham v. Tehama County Tel. Co., 29 Cal. trial on the ground of newly discovered evi- App. 326, 155 Pac. 654. dence is rightfully refused, notwithstanding the assertion in the affidavit of the existence

$ 658. of such evidence is not contradicted, where APPLICATION FOR NEW TRIAL. the affidavit contains no showing of due 1. Construction of amendment of 1915. diligence.-Foster v. National Ice Cream Co., 2, 3. Affidavits—Requisites and sufficiency. 29 Cal. App. 484, 156 Pac. 985.

4. Failure to file counter-affidavits, 27. In support of its motion for a new

effect. trial upon the ground of newly discovered

1. Construction of amendment of 1915.evidence, it is incumbent upon the moving

The amendment of 1915 requiring motions party to show the diligence employed by it

for new trials to be made only on affidavits in preparing for the first trial, how the

in certain cases and the minutes of the court alleged new evidence was discovered and why it was not discovered before the first

in other cases, was not intended to affect

proceedings for a new trial pending at the trial, and such other facts as will make it

time of such amendment, and such proceedclear to the court below that the failure to

ings must be determined on the record speproduce the alleged newly discovered evi

cified in the notice of intention.-Schmitt dence, and present it at the first trial of

v. White, 172 Cal. 554, 158 Pac. 216. the case, was not attributable to the fault or want of diligence of such party.--Foster

2. AMdavits-Requisites and sufficiency.v. National Ice Cream Co., 29 Cal. App. 484,

The moving party must state in his affida156 Pac. 985.

vits facts which show that he exercised 28. Where affidavits as to newly discov

reasonable diligence, from the beginning in ered evidence are not served until more than

endeavoring to discover the evidence before ten days after the service and filing of the

the first trial, and the decision of such quesnotice of intention to move for new trial,

tions rests in the sound discretion of the and no extension of time therefor is granted,

trial court, and will not be reversed on apthey should be excluded from consideration

peal unless an abuse of that discretion on the hearing of the motion.-Crofford v.

clearly appears. — Estate of Emerson, 170 Crofford, 29 Cal. App. 662, 157 Pac. 561.

Cal, 81, 148 Pac. 523.

3. 29. Where such affidavits are directed to

An order refusing the defendant sixty a probative fact not conclusive upon the

days' time within which to secure affidavits merits of the case, it is within the discretion

in support of his motion for a new trial of the trial court to determine whether the

is warranted, in the absence of any showing

of what was expected to be set forth in the facts therein stated are sufficient to warrant

affidavits or of any reason why the affidathe granting of a new trial.--Crofford v. Crofford, 29 Cal. App. 662, 157 Pac. 561.

vits had not already been secured.—People

v. Burrows, 27 Cal. App. 420, 150 Pac. 382. 30. While it is true generally that newly

4. Failure to file discovered evidence which is merely cumu

counter-affidavits, lative in effect will not suffice to support

effect.--A motion for a new trial on the a motion for a new trial, nevertheless if

ground of "irregularity in the proceedings such evidence, notwithstanding its cumula

of the court," based upon affidavits charging

the judge with bias and prejudice, is imtive character, possesses sufficient probative

properly denied where no counter-affidavit force to render probable a different result upon a retrial of the case, it will then war

is filed by the judge.—Keating v. Keating,

169 Cal. 754, 147 Pac. 974. rant and require an order granting a new trial.-Meinberg v. Jordan, 29 Cal. App. 760,

8 659. 157 Pac. 1005. 31. A motion for a new trial

the

NOTICE OF INTENTION. ground of newly discovered evidence is 1-3. Construction of section. properly denied where in the opinion of 4-6. As to sufficiency of notice of intention. the trial court it is not probable that the 7. Filing notice. additional evidence would have produced 8-16. Serving notice. a different result.—Montgomery & Mullen 1. Construction of section.--In changing Lumber Co. v. Ocean Park Scenic Ry. Co., the phraseology in the amendment of 1915 32 Cal. App. 32, 161 Pac. 1171.

we can not believe that the legislature in32. -Verdict against law.Where a new tended the word "trial" should mean anytrial is sought on the ground that the thing different from the words "the action decision is against law, and a new trial was tried" found in the former statute. can afford no relief, and other and effective When the legislature used the term “trial" means of relief are provided in sections 663 it must have intended to refer to the action and 663 12 of the Code of Civil Procedure, being tried, and not alone to some one or the motion for a new trial will be overruled. more issues of fact to be submitted to the -Bloxham v. Tehama County Tel. Co., 29 jury not decisive of the case; it was not Cal. App. 326. 155 Pac. 654.

intended to introduce a rule at variance 33. Order denying a new trial, the ob- with the procedure of half a century.-San

on

a

Joaquin & Kings River Canal & Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

2. The determination of a jury of some single isolated issue of fact in a case is not “the trial by jury" referred to in this section where there remains other issues undisposed of.—San Joaquin & Kings River Canal & Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

3. In condemnation proceedings the questions of use and necessity are exclusively for the court to determine and these are issues of fact, though withheld from the jury, and must be determined by the court before final judgment of condemnation can be entered, and until found upon by the court there is no “trial" as contemplated by this section.-San Joaquin & Kings River Canal & Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

As to sufficiency of notice of intention.-A notice stating the intention to move "to vacate and set aside the judgment," etc., and specifying four of the grounds mentioned herein is sufficient notwithstanding it is directed against the judgment rather than the decision.-Hoover v. Wolfe, 167 Cal. 337, 139 Pac. 794.

5. A notice of intention to move for a new trial is not ineffectual because the intention as stated was "to move the above entitled court to vacate the judgment entered," etc., whereas the word "decision" instead of "judgment" is used in the code.Fearon v. Fodera, 169 Cal. 370, Ann. Cas. 1916D 312, 148 Pac. 200.

6. Where the plaintiff moved for a new trial because of the inadequacy of the damages under the evidence, if the specification of the ground was sufficient to enable the opposing counsel to determine what evidence should be put in the statement, and the judge to strike out redundant and useless matter, it is enough.—Taylor v. Northern Elec. R. Co., 26 Cal. App. 765, 148 Pac. 543.

Filing notice.-A notice of intention to move for a new trial must be filed as well as served within the time prescribed by the code, and the trial court is without jurisdiction, under section 473 of the Code of Civil Procedure, to relieve a party from the consequences of such a failure.-Neale v. Morrow, 174 Cal. 49, 161 Pac. 1165.

8. Serving not e.-A otice intention to move for a new trial served before entry of judgment is premature and a nullity, and does not forbid the appellant from giving a later and proper one. A similar and proper notice served within the ten days, whether or not the appellant had notice of entry of judgment, is not affected by the previous void notice.-The Yamato V. Bank of So. Cal., 170 Cal. 351, 149 Pac. 826.

9. In the absence of service on the adverse party of notice of intention to move for a new trial, the lower court has no authority to grant such motion, and the voluntary appearance and consent to the

hearing of the motion, given months after the expiration of the time to serve such notice, do not cure the defect.-Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

10. An adverse party is one whose interest in the subject-matter of the motion is adverse to or will be affected by the granting of the motion or changing the former decision of the court.—Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

11. While the court can not relieve from a failure to make timely service of notice of intention to move for new trial, it may relieve from the effect of delay in serving a bill of exceptions.-Haviland v. Southern Cal. Edison Co., 172 Cal. 601, 158 Pac. 328.

12. A proceeding for a new trial is initiated by filing and serving upon the adverse party within a given time a notice of intention to move for a new trial, and the failure to serve the notice upon all adverse parties deprives the superior court of jurisdiction to grant the motion; the failure, however, to serve a given party will not deprive the court of jurisdiction to grant the motion in so far as it can be granted, without affecting the rights of the party not served. -Caruthers Building Co. v. Johnson, 174 Cal. 20, 161 Pac. 985.

13. The "adverse party" upon whom the notice is to be served is "every party whose interest in the subject-matter of the motion is adverse to or will be affected by the granting of the motion or changing the former decision of the court.”—Carruthers Building Co. v. Johnson, 174 Cal. 20, 161 Pac. 985.

14. The party in whom the title to the property had been vested before the motion for new trial was presented has the right to question the service of such notice, although not a party to the action.-Caruthers Building Co. v. Johnson, 174 Cal. 20, 161 Pac. 985.

15. Where all the issues in a case are tried by a jury, the time for serving and filing the notice of intention to move for a new trial begins to run when the verdict was rendered, but where some special issue, not determinative of the case, has been tried by a jury, the time does not begin to run upon the rendition of the verdict upon such special issue, but from the entry of judgment.-San Joaquin etc. Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768. 16.

In a proceeding for the condemnation of an easement, where the issue of public use and the issue of public necessity were first heard and determined by the court, and the issue of damages thereafter determined by a jury, the time to file and serve a notice of intention to move for a new trial runs from the time of entry of the findings and judgment, and not from the date of the verdict.--San Joaquin etc. Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

8 660. MOTION TO BE HEARD AT TIME SPECIFIED, OR DISMISSED. The motion for a new trial must be heard at the earliest practicable time after the filing of affidavits and counteraffidavits, in case the motion is made on affidavits, in other cases after the filing of the notice. On such hearing reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes, reference may also be had to any depositions and documentary evidence offered at the trial and to the report of the proceedings on the trial taken by the phonographic reporter, or to any certified transcript of such report, or if there be no such report or certified transcript, to such proceedings occurring at the trial as are within the recollection of the judge; when the proceedings at the trial have been phonographically reported, but the reporter's notes have not been transcribed, the reporter must, upon request of the court, or either party, attend the hearing of the motion, and shall read his notes, or such parts thereof as the court, or either party, may require.

[New trial hearing has precedence.) The hearing and disposition of the motion for a new trial shall have precedence over all other matters except criminal cases, probate matters and cases actually on trial, and it shall be the duty of the court to determine the same at the earliest possible moment. The power of the court to pass on motion for new trial shall expire within three months after the verdict of the jury or service on the moving party of notice of the entry of the judgment. If such motion is not determined within said three months, the effect shall be a denial of the motion without further order of the court.

History: Enacted March 11, 1872; amended March 24, 1874, Code Amdts. 1873-4, p. 317; by Code Commission, Act March 8, 1901, Stats. and Amdts. 1900-1, p. 149; Act held unconstitutional, see History, $ 5, C. C. P.; amended March 20, 1907, Stats. and Amdts. 1907, p. 718, Kerr's Stats. and Amdts. 1906-7, p. 452; April 24, 1915, Stats. and Amdts. 1915, p. 202; May 5, 1917, Stats, and Amdts. 1917, p. 240.

in effect July 27, 1917. TIME OF HEARING MOTION.

v. Southern Cal. Edison Co., 172 Cal. 601, 1. Construction of section,

158 Pac. 328. 2. -Amendment of 1915.

5. A party who fails to serve its notice 3. Constitutionality of section.

of intention to move for a new trial within 4, 5. Failure to serve notice Effect of.

time is entitled to relief from its default 6, 7. Power of court.

in serving its proposed bill o exceptions

due to an inadvertent entry in its attorneys' 1. Construction of section.-The last two

journal of the last day to serve its notice sentences of this section were added by

of intention to move for a new trial, where amendment and designed to secure a speedy

the affidavits of the moving party justify the determination of the motion. The effect of

inference that such party intended at all the statute being that the trial court must

times to appeal from the judgment, as well determine the motion "at the earliest pos

as from any order which might be made sible moment," it is the court's duty to

denying a new trial, and that its purpose do so. The court may, however, grant or

was to make up a record upon which both deny a new trial within three months.

the judgment and order might be reviewed. Lancel v. Postlethwaite, 172 Cal. 326, 156

-Haviland v. Southern Cal. Edison Co., 172 Pac. 486.

Cal. 601, 158 Pac. 328. 2. -Amendment of 1915. - The amendment of 1915 to this section can not be

Power of court.-The court may disconstrued as applicable to proceedings on

miss a motion for a new trial when the motions pending at the time it became

moving party fails to prosecute. A motion operative.-San Francisco-Oakland Terminal for a new trial may be brought on for hearRailways v. Superior Court, 172 Cal. 541, ing by either party. — Robson v. Superior 157 Pac. 604.

Court, 171 Cal. 588, 154 Pac. 8. 3. Constitutionality of section.—This sec- 7. The superior court upon the ex parte tion is a valid exercise of legislative power. application of the moving party has jurisLancel v. Postlethwaite, 172 Cal. 326, 156 diction to vacate an order denying a motion Pac. 486; San Francisco-Oakland Terminal for a new trial, where the order was made Railways v. Superior Court, 172 Cal. 541, upon the submission of the motion, in the 157 Pac. 604.

absence of counsel for the moving party, Failure to serve notice - Effect of. by a representative of the firm of opposing There is no authority to grant relief from counsel, who had no knowledge of the fact the consequences of a failure to serve a that it was agreed by his firm that the notice of intention to move for a new trial motion should be continued.-Robson y, Suwithin the time allowed by law.-Haviland perior Court, 171 Cal. 588, 154 Pac. 8.

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