Oberlander v. Fixen & Co.

THE COURT.

The appellant recovered judgment in the -court below for damages (seventeen hundred and fifty dollars), resulting from her falling down a negligently constructed staircase leading from the defendant’s storeroom, where she had just heen employed by the defendant, to the basement. The court granted a new trial on the ground of newly discovered evidence; and the grounds urged for reversal are: 1. That the affidavits

[691]

were not served or filed in time; 2. Want oí diligence on the part of defendant in preparation for trial; and 3. That the newly discovered evidence was merely cumulative.

The first point presents no difficulty. The time allowed the defendant for filing affidavits was extended by order of court, and the affidavits were in fact filed more than thirty days beyond the statutory time; but an extension beyond thirty days is forbidden 'by the section 1054 of the Code of Civil Procedure only with reference to the cases therein enumerated; among which the filing of affidavits on motion for new trial is not included, with reference to which the power of the court to extend is given by section 659, subdivision 1. The case of

Smith

v.

Jordan,

122 Cal. 68, cited by appellant’s counsel, bears no analogy to the case at bar; and the rule therein referred to— established in

Flagg v. Puterbaugh,

98 Cal. 134—has no application.

The other points may be conveniently considered together. Under the provisions of section 657 of the Code of Civil Procedure the requisites for a new trial on the ground of newly discovered evidence are that the evidence could not, with reasonable diligence, have been discovered and produced at the trial, and that it shall be "material for the party, making the application” (subdivision 4)—or, as previously expressed, «ball be of a character “materially affecting the substantial rights of such party.” The last requisite would seem to imply that the newly discovered evidence should be of such a character as to render a different result probable on a new trial; and accordingly such is held by the courts to be the established rule. (Hayne on Hew Trial and Appeal, 91.) Where these requisites ■occur they constitute sufficient grounds for new trial, and no others can be required.