Strauch v. Bieloh

THOMPSON, J. The plaintiff has given notice of appeal from the judgment which was rendered against him in a suit for damages for personal injuries sustained in an automobile collision which occurred at the intersection of Twenty-ninth and T Streets in Sacramento, and from the automatic denial of his motion for a new trial for failure on the part of the court to affirmatively pass upon the motion within sixty days from the filing of the notice of intention to apply therefor, under the provisions of section 660 of the Code of Civil Procedure. The cause was tried by the court sitting without a 'jury. The court adopted findings to the effect that the accident occurred through no fault of the defendants.

The purported appeal from the automatic denial of plaintiff’s motion for a new trial is ineffectual and it is therefore dismissed. The right of appeal is entirely statutory. (4 Cal. Jur. 111, sec. 4.) Since the amendment of section 963 of the Code of Civil Procedure in 1915, the right to appeal from an order denying a motion for new trial ceased to exist. It has been frequently declared that no right of appeal from such an order now exists. (Heine Piano Co. v. Bloomer, 183 Cal. 398 [191 Pac. 900]; Marsh v. Lapp, 180 Cal. 231 [180 Pac. 533] ; Roberts v. Colyear, 179 Cal. 669 [180 Pac. 937]; Rockey v. Vieux, 179 Cal. 681 [178 Pac. 712] ; Nordin v. Eagle Rock State Bank, 139 Cal. App. 584 [34 Pac. (2d) 490]; Hurd v. Walker, 9 Cal. App. (2d) 525 [50 Pac. (2d) 1074].)

Moreover the plaintiff’s motion for a new trial was based wholly on affidavits averring newly discovered [281]evidence which is merely cumulative. They recite facts which the plaintiff proposes to prove on a rehearing of the cause by a witness who was undiscovered at the time of the trial, which similar facts were testified to by the plaintiff himself. This cumulative evidence is to the effect that the defendants’ machine was driven onto the intersection where the collision occurred at the rate of 30 or 35 miles an hour, and that the plaintiff’s car entered the intersection at only about 15 miles an hour, ahead of the defendants’ automobile. These facts were controverted by the defendants at the trial. The mere cumulation of evidence on those issues does not entitle the plaintiff to a new trial as a matter of law, for it does not appear this new and additional testimony would change the result of the trial. On a mere matter of credibility of witnesses the court would still have the right to believe the defendants’ testimony upon those points even against a greater number of witnesses who corroborate the statements of the plaintiff. The granting or denying of a motion for new trial even on the ground of newly discovered evidence is largely in the discretion of the trial judge. His determination of the motion for new trial will not be disturbed on appeal except upon manifest abuse of discretion, which does not appear in the present case. (20 Cal. Jur. 81, sec. 58.)