Edwards v. Floyd
| Decision Date | 07 March 1950 |
| Citation | 215 P.2d 117,96 Cal.App.2d 361 |
| Court | California Court of Appeals Court of Appeals |
| Parties | EDWARDS v. FLOYD et al. Civ. 17496. |
Miller, Vandegrift & Middleton, Los Angeles, Bent & Clapp, Los Angeles, Thomas Middleton, Los Angeles, for appellant.
James M. Gammon, William V. Krowl and Kinball Fletcher, Jr., Los Angeles, for respondents.
This is an appeal by plaintiff from an order granting defendants' motion for a new trial on the ground of newly discovered evidence. The action was for crop damage suffered by plaintiff as a result of defendants' interfering with plaintiff's water supply.
This is the sole question presented for our determination:
Did the trial court abuse its discretion in granting the motion for a new trial on the ground of newly discovered evidence for the reason that defendants failed to show that they had used 'reasonable diligence' to discover and produce such evidence at the time of the trial?
This question must be answered in the affirmative and is governed by these rules:
(1) On the hearing of the motion for a new trial is is incumbent upon the moving party to show that he has exercised reasonable diligence to discover before the trial the evidence upon which he relies as 'newly discovered'. (Forman v. Goldberg, 42 Cal.App.2d 308, 317, 108 P.2d 983; Slemons v. Paterson, 14 Cal.2d 612, 616, 96 P.2d 125; Sec. 657, subsection 4, Code Civ.Proc.)
(2) A general averment of 'diligence' is not sufficient. The particular circumstances or acts performed by the moving party must be stated. (Butler v. Vassault, 40 Cal. 74, 76; Ross v. Sedgwick, 69 Cal. 247, 251, 10 P. 400.)
(3) An affidavit that newly discovered evidence was 'wholly unknown' to the moving party is a mere allegation of a conclusion, and in the absence of supporting facts is insufficient to show that the moving party has used reasonable diligence to discover the evidence relied upon in his motion for a new trial. (Hutchason v. Marks, 57 Cal.App.2d 612, 614, 134 P.2d 495.)
In the instant case the only showing made by defendants in an effort to meet the requirement that they had shown reasonable diligence to obtain, prior to the time of trial, the alleged newly discovered evidence was defendants' affidavits that such evidence 'was unknown' to them 'at the time of the trial' and that they 'could not with reasonable diligence have discovered the said evidence in time to produce the same at the trial.'
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Pierce v. Nash
...to discover before the trial the evidence upon which he relies. Slemons v. Paterson, 14 Cal.2d 612, 616, 96 P.2d 125; Edwards v. Floyd, 96 Cal.App.2d 361, 362, 215 P.2d 117. A motion for a new trial will be denied where the evidence might have been produced by the exercise of reasonable dil......
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Boynton v. McKales
...same rule was applied in reversing an order granting a new trial in Mowry v. Raabe, 89 Cal. 606, 609-610, 27 P. 157; Edwards v. Floyd, 96 Cal.App.2d 361, 215 P.2d 117; Henningsen v. Howard, 117 Cal.App.2d 352, 355, 255 P.2d In our case no affidavit whatever by either defendant or by any att......
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De Felice v. Tabor
...exercise of such discretion.' ' Kauffman v. De Mutiis, 31 Cal.2d 429, 433, 189 P.2d 271, 274. To the same effect see, Edwards v. Floyd, 96 Cal.App.2d 361, 362, 215 P.2d 117; Pierce v. Nash, 126 Cal.App.2d 606, 620, 272 P.2d 938; Boynton v. McKales, 139 Cal.App.2d 777, 782, 294 P.2d 733; Hen......
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Henningsen v. Barnard
...the affidavits were insufficient to support an order for a new trial on the ground of newly discovered evidence. Edwards v. Floyd, 96 Cal.App.2d 361, 215 P.2d 117; Slemons v. Paterson, 14 Cal.2d 612, 615-616, 96 P.2d Respondent's brief does not contain anything with respect to these points.......