Hutchason v. Marks

BISHOP, J. pro tem. In Slemons v. Paterson, (1939) 14 Cal.2d 612 [96 P.2d 125], the Supreme Court reversed an order granting a new trial on the ground of newly discovered evidence (which was, that the Patersons had been absent from the state), and in doing so made these observations which are particularly pertinent to this case (pp. 615, 616) : “The only reason stated in plaintiffs’ affidavit for failing to discover and produce this evidence upon the trial, is that they did not know that the Patersons had been absent from the state during said period, and that prior to the time that they consulted their new attorney, neither of the plaintiffs knew of the relevancy of any such absence of defendants. This does not constitute a legal excuse for failure to discover and present the evidence at the trial. (Santa Cruz R. P. Co. v. Bowie, 104 Cal. 286 [37 P. 934] ; Klockenbaum v. Pierson, 22 Cal. 160.) Plaintiffs do not claim that they could not have discovered the facts as well before the trial as after, had they been aware of their importance. ... It seems clear in the case at bar that the plaintiffs’ affidavit is, as a matter of law, insufficient to support an order granting a new trial on the ground of newly discovered evidence.

“While the granting or denial of a motion for a new trial upon the ground of newly discovered evidence is generally a matter within the discretion of the trial court, and such an order will be affirmed unless a clear abuse of discretion is shown, this rule has no application where the affidavit or other evidence upon which the order is made furnishes no basis for the exercise of such discretion. Such is the situation in the case at bar. The affidavit of plaintiffs is so lacking in essential particulars that it afforded no basis for the exercise of the discretion of the trial court in granting the motion.

“. . . It does not appear from plaintiffs’ affidavit that they made any effort whatever to obtain the evidence prior to the trial. If the evidence had been obtained and presented, the issues presented by the pleadings could have been finally determined without further delay or additional expense to the parties. It is a matter of public interest that there be an end to litigation and that a new trial should not be granted for the purpose of enabling a party to produce further evidence [614]unless he has shown some legally justifiable excuse for not having produced such evidence at the former trial. (Sec. 657, subd. 4, Code Civ. Proc.) The affidavits supporting the motion must show that there has been no lack of diligence. [Citing cases.] ”