Jacks v. Buell

47 Cal. 162

• Court: California Supreme Court
• Decided: July 1, 1873
• Docket: No. 3,816
• Status: Published

Opinion

By the Court:

Upon a motion for a new trial, questions respecting the sufficiency of the complaint cannot be presented, for they are not comprehended in the statutory grounds of the motion; and where an appeal is taken, as here, from the order refusing a new trial, and not from the judgment, those questions cannot be considered by this Court.

The affidavit for a continuance did not show due diligence on the part of the defendant in procuring the attendance of the absent witnesses. But were the affidavit sufficient in this respect, the action of the Court in denying the motion could not be reviewed, because it is not presented by a bill of exceptions. The affidavits are clearly insufficient to entitle the defendant to a. new trial, on the ground of newly-discovered evidence.

Order affirmed.