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District Court of Appeal, Second District, Division 1, California.


Civ. 17694.

Decided: October 26, 1950

Lindstrom & Bartlett, Los Angeles, for appellant. Marshall Stimson and Raymond A. Nelson, Los Angeles, for respondent.

Appellant in her petition for rehearing complains that the opinion heretofore filed in this cause failed to pass upon the point that her motion for a new trial should have been granted. The ground particularly urged in support of said motion for a new trial was that of newly discovered evidence consisting of ‘admissions by the ward that she had been properly served in time with the original petition and citation.’

The purported admissions were made to Maynard R. Shaeffer, a tenant of the ward. A counter-affidavit was to the effect that he and the ward did not get along. An examination of the Shaeffer affidavit reveals that affiant was biased in favor of appellant. It was cumulative in most respects and somewhat impeaching, but was not sufficient to change the result reached on the issue of notice or on the issue of fraud.

As stated in Scott v. Flanagan, 14 Cal.App.2d 105, 112, 57 P.2d 1382, 1385, ‘It is a well-established rule that the granting of a new trial rests largely in the discretion of the trial court, and will not be disturbed if it can be upheld upon any ground shown by the record. Smith v. Royer, 181 Cal. 165, 166, 183 P. 660. Where the motion is based upon the ground of newly discovered evidence, it must appear that the evidence is new, material, and not cumulative.’

The petition for rehearing is denied.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur. Hearing denied; CARTER and TRAYNOR, JJ., dissenting.