Edwards v. Floyd

McCOMB, J.

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 it 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] ; Code Civ. Proc., § 657, subsec. 4.)

(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