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 sufficient 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 V. Young, 172 Cal. 317, 156 Pac. 476.

§ 656.

1. New trial-Construction of section.This section does not define what is meant by a trial. San Joaquin & Kings River Canal & Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

2. The question whether the judgment is authorized by the pleadings or findings can not be agitated on the motion for a new trial, for it is not involved in a reexamination of the issues of fact.-Bloxham v. Tehama County Tel. Co., 29 Cal. App. 326, 155 Pac. 654.

1. Construction of section. The provisions of the code relating to new trials are not applicable to a judgment entered on motion against a surety on an undertaking given to stay execution on a judgment pending appeal.-Gray v. Cotton, 53 Cal. Dec. 98, 162 Pac. 1019.

2. Discretion of court.-Motions for new trial are addressed to the sound discretion of the trial court, and its action will not be disturbed unless the record shows an abuse of such discretion, the presumption being that the discretion was properly exercised.-People v. Kilfoil, 27 Cal. App. 29, 148 Pac. 812.

3. In the granting of a motion for a new trial, the trial judge has a very broad discretion, and the order will be upheld on appeal if it may be supported upon any of the assigned grounds.-Miller v. Logan, 32 Cal. App. 28, 161 Pac. 1022.

4. -Order affirmed when.-Upon an appeal from an order granting a new trial, if it is found that the trial court erred in granting the motion, so far as the grounds upon which the court based the order are concerned, and that the new trial should have been granted because of some other ruling on a question of law, which the trial court believed was not erroneous, the order will be affirmed. Steil v. Sun Insurance Office, 171 Cal. 795, 155 Pac. 72.

5. When no abuse of discretion is shown, the granting of an order granting a new trial will not be disturbed on appeal.-McEwen v. Occidental Life Ins. Co., 172 Cal. 6, 155 Pac. 86.

6. An order granting a new trial must be affirmed, without regard to the ground upon which it is specifically based, if it could be rightfully granted upon any of the grounds upon which the motion was made; such rule, however, is subject to the exception that in passing upon the correctness of the order granting a new trial the appellate court may not consider the insufficiency of the evidence when the lower court "by direct language" expressly excludes that ground as a basis for its order. -Meinberg v. Jordan, 29 Cal. App. 760, 157 Pac. 1005.

7. An order granting a new trial must be affirmed without regard to the ground upon which it is specifically based if it could be rightfully granted upon any of the grounds upon which the motion was made, subject, however, to the exception that in passing upon the correctness of the order the appellate court may not consider the insufficiency of the evidence when the lower court by direct language expressly excludes such ground as a basis for its order.-Meinberg v. Jordan, 29 Cal. App. 760, 157 Pac. 1005.

8. An order granting a new trial will not be disturbed upon appeal save upon a showing of an abuse of the discretion vested in the trial court.-Meinberg v. Jordan, 29 Cal. App. 760, 157 Pac. 1005.

came

26. An order denying a motion for a new trial on the ground of newly discovered evidence is rightfully refused, notwithstanding the assertion in the affidavit of the existence of such evidence is not contradicted, where the affidavit contains no showing of due diligence.-Foster v. National Ice Cream Co., 29 Cal. App. 484, 156 Pac. 985.

27. In support of its motion for a new trial upon the ground of newly discovered evidence, it is incumbent upon the moving party 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 discovered before the first trial, and such other facts as will 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 such party.-Foster v. National Ice Cream Co., 29 Cal. App. 484, 156 Pac. 985.

28.

Where affidavits as to newly discovered evidence are not served until more than ten days after the service and filing of the notice of intention to move for new trial, and no extension of time therefor is granted, they should be excluded from consideration on the hearing of the motion.-Crofford v. Crofford, 29 Cal. App. 662, 157 Pac. 561.

29. Where such affidavits are directed to a probative fact not conclusive upon the merits of the case, it is within the discretion of the trial court to determine whether the facts therein stated are sufficient to warrant the granting of a new trial.-Crofford v. Crofford, 29 Cal. App. 662, 157 Pac. 561.

30. While it is true generally that newly discovered evidence which is merely cumulative in effect will not suffice to support a motion for a new trial, nevertheless if such evidence, notwithstanding its cumulative character, possesses sufficient probative force to render probable a different result upon a retrial of the case, it will then warrant and require an order granting a new trial.-Meinberg v. Jordan, 29 Cal. App. 760, 157 Pac. 1005.

31. A motion for a new trial on the ground of newly discovered evidence is properly denied where in the opinion of the trial court it is not probable that the additional evidence would have produced a different result.-Montgomery & Mullen Lumber Co. v. Ocean Park Scenic Ry. Co., 32 Cal. App. 32, 161 Pac. 1171.

brought by the husband of the plaintiff can not be considered, where the cause was tried on the pleadings as they stood without objection to the evidence in support thereof. Bloxham v. Tehama County Tel. Co., 29 Cal. App. 326, 155 Pac. 654.

1. Construction of amendment of 1915.— The amendment of 1915 requiring motions for new trials to be made only on affidavits in certain cases and the minutes of the court in other cases, was not intended to affect proceedings for a new trial pending at the time of such amendment, and such proceedings must be determined on the record specified in the notice of intention.-Schmitt v. White, 172 Cal. 554, 158 Pac. 216.

2. Affidavits-Requisites and sufficiency.— The moving party must state in his affidavits facts which show that he exercised reasonable diligence, from the beginning in endeavoring to discover the evidence before the first trial, and the decision of such questions rests in the sound discretion of the trial court, and will not be reversed on appeal unless an abuse of that discretion clearly appears. Estate of Emerson, 170

Cal. 81, 148 Pac. 523.

3. An order refusing the defendant sixty days' time within which to secure affidavits in support of his motion for a new trial is warranted, in the absence of any showing of what was expected to be set forth in the affidavits or of any reason why the affidavits had not already been secured.-People v. Burrows, 27 Cal. App. 420, 150 Pac. 382.

4. -Failure to file counter-affidavits, effect.-A motion for a new trial on the ground of "irregularity in the proceedings of the court," based upon affidavits charging the judge with bias and prejudice, is improperly denied where no counter-affidavit is filed by the judge.-Keating v. Keating, 169 Cal. 754, 147 Pac. 974.

§ 659.

NOTICE OF INTENTION. 1-3. Construction of section. 4-6. As to sufficiency of notice of intention. 7. Filing notice. 8-16. Serving notice.

1.

Construction of section.-In changing the phraseology in the amendment of 1915 we can not believe that the legislature intended the word "trial" should mean anything different from the words "the action was tried" found in the former statute. When the legislature used the term "trial" it must have intended to refer to the action being tried, and not alone to some one or more issues of fact to be submitted to the jury not decisive of the case; it was not intended to introduce a rule at variance with the procedure of half a century.-San

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.

4. 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.

7. 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 notice.-A notice of 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 a 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.