Brooks v. Lyon
California Supreme Court
Appeal from the Fourth Judicial District. This was an appeal, taken September 6, 1852, from a judgment of the District Court refusing to grant a new trial, upon the motion and affidavit of the defendant. The insufficiency of the affidavit upon -which the motion was based, was the only question considered in this court. And its defects are particularly pointed out in the opinion of the court.
1Opinion of the CourtWells, Justice
Heydenfeldt, Justice, concurred.
The affidavit on which the motion for a new trial, on the ground of surprise and newly discovered evidence, was based, was insufficient.
From aught that appears to the contrary, the cause was noticed for trial in due form, and at a proper time, and was *114placed upon the calendar for the trial of causes, and called on for hearing in its regular order; and while there is nothing to show that the defendant was taken by surprise, except his own naked and unsupported allegation, it would seem that the exercise of the slightest degree of prudence on the part of himself…
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