Brady v. O'Brien (1863) · DecisionDepot

Brady v. O'Brien

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1863Published

Before: Crocker

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Holding. The court held that an objection regarding the sufficiency of a motion for a new trial must be raised in the lower court to be reviewable on appeal.

Issues

Whether a motion for a new trial is reviewable when the record fails to show that an objection to its sufficiency was raised in the court below.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Error will not be presumed, but must be clearly shown by the record.”

Synopsis

If the statement and notice of motion for new trial are defective, in not setting forth, specifically, the grounds of the motion, an objection should be made on this ground, in the Court below, to enable the Supreme Court to review the action of the Court below.

Crocker, J. delivered the opinion of the Court—Uortok, J. concurring.

This is an appeal from an order granting a new trial. It is urged that the statement and notice of motion for a new trial are defective in not setting forth, specifically, the grounds of the motion. The record does not show that any objection was made on this ground in the Court below, which should have been done, to enable [245]us to review the action of the Court. If the objection had been made there, probably the Court would have allowed an amendment in that respect; or the parties may have consented to waive that objection. Error will not be presumed, but must be clearly shown by the record. If the objection had been made on that ground, in a proper mode, and the Court had overruled it, then such action could have been reviewed by this Court on appeal.

The order is affirmed.

Brady v. O'Brien

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