Sitkei v. Frimel

WILSON, J.

Appeal from an order granting motion for new trial.

This is an action for partition of real property. Findings and interlocutory judgment were entered decreeing that plaintiff and defendant Frimel (hereinafter referred to as respondent) were the owners in fee of the property, each an undivided one-half interest, and ordering it to be sold and the proceeds divided equally between the parties after paying costs and expenses.

The interlocutory judgment was entered on March 26, 1947. On April 3, 1947, notice of entry of judgment was served and on the same day respondent served and filed a notice of intention to move for a new trial on six grounds, not however including the ground of newly discovered evidence. On April 25, 1947, respondent served and on April 28, filed “a notice of amendment to motion for new trial” stating that the motion would be made on the additional ground of newly discovered evidence material to the case and which respondent could not with reasonable diligence have discovered and produced at the trial. Accompanying the latter notice was an affidavit made on information and belief relating to the alleged newly discovered evidence. On May 2 and 5, additional affidavits were filed on behalf of respondent. On May 13, the court made an order granting the motion for new trial solely on the ground of newly discovered evidence. The order must be reversed for the several reasons hereinafter discussed.

(1) The court erred in considering the ground of newly discovered evidence. Section 659 of the Code of Civil Procedure provides that within 10 days after receiving notice of entry of judgment the party intending to move for a new trial must file and serve on the adverse party his notice of intention “designating the grounds upon which the motion will be made” and whether it will be made on affidavits or the minutes of the court or both, and that “The time above specified shall not be extended by order or stipulation.”

[337]

The notice did not specify newly discovered evidence as one of the grounds on which the motion would be made. No affidavits whatsoever were filed within 10 days after the filing of the notice of intention. Nothing was done until 25 days after filing the notice, when, on April 28, the notice of amendment to motion for new trial was filed, adding the ground of newly discovered evidence.