Nooney v. Mahoney

By the Court, Rhodes, J.: The granting or refusing of a new trial, which, is asked for on the ground of surprise, is a matter resting very much in the legal discretion of the Court below, and the appellate [227]Court is not justified in interfering with the order, unless an abuse of discretion is made to appear. (Smith v. Richmond, 15 Cal. 502; Schellhous v. Ball, 29 Cal. 605.) We are by no means satisfied that the Court erred in holding that the defendant had failed to make out a case of surprise that ordinary prudence could not have guarded against. The placing of the cause on the calendar for trial by the Clerk, after the commencement of the term, cannot be said to have been more than an irregularity. The omission to place it on the calendar before the commencement of the term, was also an irregularity, which the plaintiff was entitled to have corrected. And conceding that the placing of the cause on the calendar by the Clerk without being - ordered so to do by the Court was erroneous, the defendant cannot claim that he was surprised by the cause being thus entered, for, after the commencement of the term, the plaintiff several times informed him of that fact, stated the number of the case on the calendar, and told him that he would bring the case on to trial at that term. The defendant, knowing that the cause was not on the calendar as printed, was put upon his inquiry by the repeated statements of the plaintiff, and, as a prudent man, he should have searched the calendar at the Clerk’s office, where he would have learned that the cause was bn the calendar, and liable to be called up in its order.

Judgment affirmed.