Brady v. O'Brien

23 Cal. 244

• Court: California Supreme Court
• Decided: July 1, 1863
• Status: Published

Opinion

Crocker, J.

delivered the opinion of the Court—Uortok, J. concurring.

This is an appeal from an order granting a new trial. It is urged that the statement and notice of motion for a new trial are defective in not setting forth, specifically, the grounds of the motion. The record does not show that any objection was made on this ground in the Court below, which should have been done, to enable us to review the action of the Court. If the objection had been made there, probably the Court would have allowed an amendment in that respect; or the parties may have consented to waive that objection. Error will not be presumed, but must be clearly shown by the record. If the objection had been made on that ground, in a proper mode, and the Court had overruled it, then such action could have been reviewed by this Court on appeal.

The order is affirmed.