De Felice v. Tabor

ASHBURN, J.

This is a paternity action in which the court, after trial without a jury, found that defendant is not the father of the child and rendered judgment in his favor. Plaintiff moved for a new trial and it was granted upon the ground of newly discovered evidence complying with the requirements of Code of Civil Procedure, section 657, subdivision 4. Defendant appeals from that order and plaintiff takes a cross-appeal from the judgment pursuant to rule 3 (a) of the Rules on Appeal.

The motion for new trial was made upon three specified grounds,—insufficiency of the evidence to justify the decision, accident or surprise which ordinary prudence could not have guarded against, and newly discovered evidence material for the party making the application which she could not with reasonable diligence have discovered and produced at the trial. The clerk’s minute order says•. “Motion granted;” a later order signed by the judge says, “the motion of plaintiff for a new trial is now by the Court granted, on the grounds of newly discovered evidence.” It is conclusively presumed that the order was not based on insufficiency of the evidence because it does not so specify. (Code Civ. Proc., § 657, last par.) There is no suggestion that the order is sustainable on the ground of surprise. This reduces the ruling to one based on newly discovered evidence, for the court cannot act upon a ground not specified in the notice of intention.

(Dynes

v.

Bekins Van & Storage Co.,

175 Cal. 72, 73 [165 P. 12]; 4 Cal.Jur.2d § 539, pp. 393-394.)

In support of the motion plaintiff presented two affidavits. One, made by Jack Sylvester, was to the effect that plaintiff had been employed by him from August 1951 through September 1952 (a period ending two years before the child was born), that during said period she resided in the home of himself and wife, usually watched television during the evening, and had no social contacts with men. According to plaintiff’s physician the child was conceived in January 1954 and born in eight months, August 29, 1954. Obviously,

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plaintiff knew at all times the facts set forth in this affidavit (if they be facts), and knew that Sylvester was cognizant of them. She gives no explanation of her failure to produce his evidence at the trial, nor does Sylvester’s affidavit do so.