SILVA v. SILVA

SILVA v. SILVA. No. 15,623; October 31, 1894. 38 Pac. 105. New Trial—Newly Discovered Evidence.—Where, on appeal, no affidavit to support a motion for a new trial on the ground of newly discovered evidence is identified as used on the hearing of the motion, and the affidavits in the transcript show that the alleged new evidence is merely cumulative, and would not probably effect a different result on a new trial, the denial of such motion will be affirmed. . APPEAL from Superior Court, Alameda County; John Ellsworth, Judge. Action by Prank Silva against Maria C. Silva to establish a trust in land. Prom a judgment for defendant, and from" an order denying his motion for a new trial, plaintiff appeals. Affirmed. John F. Burris and Moses G. Cobb (Stephen G. Nye of counsel) for appellant; R. B. Tappan for respondent. [MAJORITY — VANCLIEF, C. PER CURIAM.] VANCLIEF, C. It is alleged in the complaint in this action that the defendant holds a certain lot of land in trust for the plaintiff, and prays that it be so adjudged by the court. The answer of the defendant is a denial of the alleged trust. Judgment passed for defendant. Plaintiff appeals from the judgment and from an order denying his motion for a new trial. A careful reading of the transcript of one hundred pages and sixty pages of briefs for appellant has led me to the conclusion that the appeal is totally destitute of merit. In limine, counsel for appellant complain that the court erred in substituting for their statement of the evidence an ‘ ‘ epitome ’ ’ of the stenographic report thereof, which does not fully nor truly represent it. But of this there is not the slightest evidence in the statement or bill of exceptions on which the motion for new trial was made. It does not appear, even, that appellant’s original statement of the evidence was amended or changed in any respect. One of the grounds of the motion, as stated in the notice of the motion, was newly discovered evidence, and it is contended that the court erred in not granting the motion on this ground. But, in the first place, no affidavit to prove this ground of the motion is properly identified as having been used or read on the hearing of the motion; and, in the second place, the affidavits printed in the transcript show that the alleged newly discovered evidence was merely cumulative to that introduced by plaintiff on the trial; and, furthermore, that it probably would not effect a different result on a new trial. It is contended that the findings of fact are not justified by the evidence. But the evidence appears to be amply sufficient to justify the findings in all particulars in which they are excepted to in appellant’s brief. Nor does the statement contain any intelligible specification of any error in law committed at the trial. Yet all the points made under this head in appellant’s brief have been considered, with the result that no such error is made to appear. I think the order and judgment should be affirmed. / We concur: Haynes, C.; Belcher, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.