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146. The Court may require a remittitur of a portion of an excessive judgment, or grant a motion for a new trial. Benedict v. Coyen, 4 Cal. 382.

147. When a new trial was to be had on payment of costs: Held, that the acceptance of costs did not waive the right to appeal from the order granting a new trial. Tyson v. Wells, 1 Cal. 378.

148. It is not error in the Court below to refuse a new trial, provided the successful party will consent to a reduction of his judgment. Chapin v. Bourne, 8 Cal. 296.

$ 194. When application for new trial to be made upon affidavit or statement.

When the application is made for a cause mentioned in the first, second, third and fourth subdivisions of the last section, it shall be made upon affidavit; for any other cause, it shall be made upon a statement prepared as provided in the next section.

1. Where a motion for a new trial is made on the ground of surprise, the affi. davits on which the motion is founded should set forth particularly and distinctly the facts which the party expects to be able to prove by his witnesses on a new trial: Held, where the affidavits did not set forth the facts to which the party expected his witnesses would testify, that a new trial was properly refused. Rogers v. Huie, 1 Cal. 429.

2. The affidavits of the witnesses themselves should also, if practicable, be procured, setting forth the facts, within their knowledge, to which they can testify in case a new trial should be granted. Id.

3. A notice of motion for new trial, unaccompanied by the affidavit required by statute, will not entitle the statement of the grounds of the motion to be considered on appeal. Adams v. City of Oakland, 8 Cal. 513.

$ 195. Notice of motion for new trial; when and how statements or affidavits to be made and filed.

[1861.] The party intending to move for a new trial shall give notice of the same, as follows: When the action has been tried with a jury, within five days after the rendition of the verdict; and when the action has been tried by the Court or a referee, within ten days after receiving written notice of the filing of the findings of the Judge, or the report of the referee; and he shall within five days after giving such notice, or within such further time, not exceeding twenty days, as the Court, or the Judge thereof, may by order grant, prepare and file with the Clerk the affidavit required by the last section, or a statement of the grounds upon which he intends to rely. If no affidavit or statement be filed within five days after the notice, or within such further time as the parties may agree upon, or the Court or Judge thereof may by order grant, the right to move for a new trial shall be deemed waived. The grounds of the motion shall be specifically set forth, and the statement shall contain so much of the evidence, or reference thereto, as may be

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necessary to explain them, and no more ; such statement, when not agreed to by the adverse party, shall be settled by the Judge upon notice; * when agreed to, it shall be accompanied by the certificate of the parties or their attorneys, that the same has been a greed upon and is correct; and when settled by the Judge, the same shall be accompanied with his certificate, that the same has been allowed by him and is correct; on the argument, reference may also be made to the pleadings, depositions and documentary evidence on file, and to the minutes of the Court. If the application be made upon affidavits filed, the adverse party may use counter affidavits on the hearing; any counter affidavits shall be filed with the Clerk one day at least previous to the hearing; the affidavits and counter affidavits, or the statement thus used in connection with such pleadings, depositions and minutes of the Court as are read or referred to on the hearing, constitute, without further statement, the papers to be used on appeal from the order granting or refusing the new trial. To identify the affidavits, it shall be sufficient for the Judge or Clerk to indorse them at the time, as having been read or referred to on the hearing. To identify any depositions or minutes of the Court read or referred to on the hearing, it shall be sufficient that the Judge designate them in his certificate as having been thus read or referred to.

1. Time of filing notice.-A motion for a new trial must be made within the statutory time, unless there be circumstances which take the case out of the general rule. Elliott v. Osborne, 1 Cal. 396 ; Dennison v. Smith, Id. 437.

2. An injunction order restrains the acts of parties, but it does not stay the running of time, and the effect of it cannot be to postpone the statutory time required in giving notice of a motion for a new trial. Elliott v. Osborne, supra.

3. A party failing to give notice in time of his intention to move for a new trial, or to file his statement in time, waives his right to move for a new trial. Caney v. Silverthorn, 9 Cal. 67.

4. Notice of motion for new trial, given one day before judgment rendered, and six days after filing the report of the referee, is ineffectual for any purpose. If the trial terminated with the filing of the report, the notice was not in time; if it continued, in contemplation of law, until the entry of judgment, the notice was premature, and the proceedings on the motion are void. Mahoney v. Caperton, 15 Cal. 313.

5. On the rendition of a special verdict, the trial is terminated, and notice of motion for new trial must be given within the statutory time thereafter, or the proceedings based upon such notice will be disregarded. ` Allen v. Hill, 16 Cal. 113.

6. On motion for a new trial, the filing of a counter statement is a waiver of objections to want of notice of the intention to move for a new trial. Williams v. Gregory, 9 Cal. 76.

7. A stipulation to refer the whole matter is a waiver of any objection that the

See Appendix, " Act concerning Courts," $ 25, as to the time within which a Judge may sign and settle statements on motions for new trials.

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motion for a new trial and to set aside the award was not made in statute time. Heslep v. City of San Francisco, 4 Cal. 2.

8. Notice, what is.—When the statute speaks of notice of motion, it means written notice, or notice in open Court of which a minute is made by the Court. Borland v. Thornton, 12 Cal. 448.

9. Notice, effect of, as a stay.-A motion for a new trial, filed within the time allowed by law, stays the operation of the judgment and preserves all rights, until it can be heard and determined, and is not affected by the adjournment of the Court for the term. Lurvey v. Wells, Fargo g. Co., 4 Cal. 105.

10. Pendency of a motion for a new trial, does not operate as a suspension of an injunction. Ortman v. Dixon, 9 Cal. 23.

11. Notice must be perfected by filing statement in proper time.-A notice

of a motion for a new trial, unaccompanied by the affidavit or statement required by the statute, will not entitle the statement of the grounds of the motion to be considered on appeal. Adams v. City of Oakland, 8 Cal. 510.

12. Where the statement, on motion for a new trial is not filed within the time prescribed by law, this Court will only look to the judgment roll. Safferty v. Brownlee, 11 Cal. 132.

13. An order for a new trial set aside, where the defendant had not filed a statement as required by the one hundred and ninety-fifth section of the Practice Act. Hill v. White, 2 Cal. 306.

14. Statement may be received upon good cause shown after statutory time has expired.-On motion for new trial the Court below should not, unless good reason be shown, receive an affidavit made after the time for filing affidavits or statements on the motion has elapsed. Howe v. Briggs, 17 Cal. 385.

15. Statement, what should contain.-In a statement for a new trial the evidence may be simply referred to, and need not be set out in the statement itself. It is not so in a statement on appeal, in which the evidence, if relied upon, must be set out. Dickinson v. Van Horn, 9 Cal. 207. A statement to be recorded on appeal, must be entire. Hutchinson v. Bours, 13 Cal. 50.

16. A rule of the District Court, requiring a party on motion for new trial to prepare and submit a statement of the evidence at the trial, does not apply to issues submitted to a jury in a chancery case. Purcell v. McKune, 14 Cal. 230.

17. The finding of the Court need not be embodied in the statement or bill of exceptions. Reynolds v. Harris, 8 Cal. 618.

18. Where no grounds or reasons are stated, on motions for nonsuit and new trial, and no exceptions taken to instructions of the Court, errors cannot be assigned. Holverstot v. Bugby, 13 Cal. 44.

19. A failure to file a statement, setting forth the grounds upon which a party intends to rely, on motion for a new trial, operates as a waiver of the right to the motion. Wings v. Owens, 9 Cal. 247.

20. The object of a statement, as provided by our statute, is to make that record which before was not record, and which rests only in the recollection of the Courts, or counsel, or the minutes of the Clerk. Johnson v. Sepulbeda, 5 Cal. 149.

21. Statement may be amended.-A statement, on motion for a new trial, regularly settled and signed by the Judge, and containing all the grounds of the motion, but without any specification thereof, may be amended by the Judge, 80 as to insert a specification of the grounds of the motion, after the time for filing a statement has passed. Valentine v. Stewart, 15 Cal, 387.

22. Valentine v. Stewart, (15 Cal. 396) that the Court below may allow an amendment to a statement on a motion for a new trial, by adding the grounds of the motion after the time for filing a statement has passed, affirmed by Loucks v. Edmondson, 18 Cal. 203.

23. A statement agreed on by parties should not probably be amended by the Court on motion,

unless under a very clear showing of mistake or fraud. Hutchinson v. Bours, 13 Cal. 52.

24. Statement, settlement and authentication of.-A statement which was filed in the Court below on motion for a new trial, and is neither agreed to by counsel, nor settled by the Judge trying the case, has not sufficient authentication to constitute any portion of the record which this Court can notice. Doyle v. Seawall, 12 Cal. 425 ; Paige v. O'Veal, 12 Id. 492.

25. The certificate of a Judge is a sufficient authentication of a statement; and where a party does not think proper to file amendments, or the Judge to correct the statement, the certificate of that fact by the Judge is all that is necessary. Redman v. Gulnac, 5 Cal. 148.

26. If the statement filed in support of a motion for a new trial is not settled by the Judge, it cannot be therefore inferred that it was agreed to. Such statement must either be agreed to, or it must be settled by the Judge, and one of these conditions must be shown affirmatively. In the absence of both, such statement will be rejected. Sinn v. Twist, 3 Cal. 89.

27. It is no objection that the statement does not affirmatively show that the settlement was upon proper notice, or in the presence of both parties. In the absence of evidence to the contrary, the presumption of law is in favor of the regularity of all official acts. Battersby v. Abbott, 9 Cal. 568.

28. Statement, authentication of, may be waived.—Where a party appears and argues a motion for a new trial, he cannot afterwards object that the statement was not agreed to by him, and that it was not settled by the Judge. Dickinson v. Van Horn, 9 Cal. 207.

29. When it appears from the bill of exceptions, signed by the Judges, that the motion for new trial was heard on statement, counter statement and affidavits, it cannot be objected that the statement was not settled. Williams v. Gregory, 9 Cal. 76.

30. A statement on motion for new trial, signed by the Judge and appearing, from the minutes of the Court, to have been used on the hearing of the motion, is sufficiently authenticated. The statute points out no mode of authentication, and any satisfactory evidence in the record, in some legitimate and proper form, that the statement has been examined and approved by the Judge, is sufficient. Kidd v. Laird, 15 Cal. 161.

31. The Courts should look at the substance of the contents of the statement, and disregard its imperfections in form. Ringgold > Haven, 1 Cal. 113.

32. Evidence on hearing of motion for new trial.-A stipulation to the effect that a statement may be used on the motion for new trial in this cause, and also on the appeal to the Supreme Court," includes an appeal from the judgment, as well as an appeal upon the decision for the motionfor a new trial. Hastings v. Halleck, 13 Cal. 207.

33. A deposition of one of the defendants, introduced by plaintiff on trial, may be introduced by defendants in a new trial. Turner v. McIlhaney, 8 Cal. 579.

34. Motion for new trial may be abandoned.-Plaintiff recovered judgment, and defendants gave notice of their intention to move for a new trial, and filed a statement of the grounds. Plaintiff filed a counter statement, but afterwards, at a meeting of the parties before the Judge at Chambers to settle the statement, informed the Judge and defendants that the statement need not be settled, as he would consent to a new trial ; whereupon, defendants gave notice of a motion to withdraw their motion or proceedings for new trial. Refused, and a new trial granted : Held, that the Counterred; that the defendants had a right to move or not to move for a new trial upon the notice given, and if they chose to abandon their proceedings, whether before or after the motion for new trial was made, they had the right so to do. Stoyell v. Cole, 19 Cake 602.

35. Motion to strike out statement. 4 notice of a motion to strike out a "statement on motion for a new trial,” must specify the grounds upon which the motion will be made, and wherein the statement is insufficient; and where the notice stated that the motion would be made for the reason that the statement was “insufficient and not a lawful statement," the motion was properly overruled. Id.

§ 196. Motion to be made without delay.

The application for a new trial shall be made at the earliest period practicable after filing the affidavit or statement.

See Appendix, Title “Courts," $ 25.

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