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District Court of Appeal, First District, Division 2, California.

SLEMONS et al. v. PATERSON et al.*

Civ. 10901

Decided: July 20, 1939

K.R. McDougall, of Palo Alto, for appellants. Charles H. Sooy and Charles D. Sooy, both of San Francisco, for respondents.

The plaintiffs commenced an action against the defendants to obtain a deficiency judgment after having caused to be made a sale of real estate under a trust deed. The defendants answered and among other things set up a defense of the statute of limitations. Section 337, subd. 1, Code Civ.Proc. The parties entered into a stipulation which by its terms should not have been filed. Nevertheless it was filed May 26, 1938. Judgment was ordered in favor of the defendants. The plaintiffs made a motion for a new trial. On April 19, 1938, in open court, the trial court made an order granting the motion. That order was not entered until April 26, 1938. On May 10, the trial court having the matter called to its attention, of its own motion made an order correcting the record to make it speak the truth and showing said order to have been made April 19, 1938. Afterwards cross-motions were made. The plaintiffs made a motion that the said stipulation be stricken from the files and that they be relieved from the force and effect thereof. That motion was granted. The defendants made a motion that the order granting a new trial be vacated. That motion was denied. The defendants have filed purported appeals from (1) the order granting plaintiffs' motion for a new trial; (2) the order denying defendants' motion to vacate said order; (3) the order denying defendants' motion for an order directing the clerk to enter nunc pro tunc as of February 14, 1938, the oral stipulation of plaintiffs' attorney waiving notice of entry of judgment; (4) the order denying defendants' motion to vacate the order made by the court of its own motion; and (5) the order granting plaintiffs' motion to strike the stipulation from the files. The appeal first mentioned was from an appealable order (Code Civ.Proc. § 963), and will hereinafter be discussed. The other orders are not appealable orders (2 Cal.Jur. 163), and the appeals are dismissed.

The defendants claim the order granting a new trial was not made until April 26, 1938, that is, more than sixty days after plaintiffs filed their notice of intention to move for a new trial, and that at that time the trial court had lost jurisdiction. Code Civ.Proc., § 660. We find no merit in the contention of the defendants. Under the facts the correct date of the court's order was April 19, 1938, the date of the pronouncement thereof. United Railroads v. Superior Court, 197 Cal. 687, 242 P. 701. Furthermore, under the facts the trial court had the right to cause its minutes to be amended to speak the truth and its order dated May 10, 1938, was likewise correct. Spier v. Lang, 4 Cal.2d 711, 53 P.2d 138.

The defendants also contend that, in making the order, the trial court abused its discretion. They contend that the plaintiffs made no showing that they could not with reasonable diligence have discovered and produced at the trial the newly discovered evidence. They cite and rely on a number of cases in which an order denying a motion for a new trial was involved. Those cases are not in point. In Mowry v. Raabe, 89 Cal. 606, 27 P. 157, the facts relied on by the moving party were not newly discovered. In Vertson v. City of Los Angeles, 116 Cal.App. 114, 2 P.2d 411, the newly discovered evidence on which the moving party relied was merely cumulative and was testimony to be given by the employees of the moving party. Authorities more directly in point are Heintz v. Cooper, 104 Cal. 668, 38 P. 511, Blewett v. Miller, 131 Cal. 149, 63 P. 157, and Cahill v. E.B. & A.L. Stone Co., 167 Cal. 126, 138 P. 712. In the case first cited the court was considering an appeal from a motion granting a new trial. There, as here, it was earnestly contended that there was no sufficient showing of diligence. Commencing on page 669 of 104 Cal., 38 P. at page 512, Mr. Justice Van Fleet, speaking for the court, said: “ ‘Diligence’ is a relative term, incapable of exact definition. What would amount to due diligence under one state of facts would fall absolutely short of it under another and different state of facts. It depends, therefore, so essentially upon the particular circumstances of each case, with all their distinct and varying phases and bearings, as they have appeared to the lower court at the trial and throughout the conduct of the cause, in determining whether diligence has been used in any particular instance, that this court should hesitate to disturb a ruling upon this ground where it has any substance whatever upon which to rest. The presumption is that the discretion has been properly exercised, and that presumption must be overcome by a clear want of facts before the order will be disturbed. See Jones v. Singleton, 45 Cal. 92; Baker v. Joseph, 16 Cal. [173] 180; Kenezleber v. Wahl, 92 Cal. 202, 28 P. 225. There is no such want in the showing made here.” (Emphasis ours.)

As another subdivision of the last point the defendants contend the proof offered by the plaintiffs in support of their motion was incompetent. Said proof consisted of the joint affidavit of the plaintiffs. Therein they alleged they had interviewed the employer of the defendant, Malcolm G. Paterson, and they were informed by said employer that Mr. Paterson was in New York for twelve weeks. They also alleged they had interviewed Mrs. West, the landlady of the defendants, and by her they were informed Mrs. Paterson was in Arizona for forty days. They also alleged that said absences fell within the period which said defendants claimed the statute of limitations ran. The plaintiffs' motion was based on section 657, subd. 4, of the Code of Civil Procedure. When a motion for a new trial is based on that subdivision it must be made on affidavits. Section 658, Code Civ.Proc. In Brown v. Happy Valley Fruit Growers, 206 Cal. 515, 274 P. 977, the court was considering an appeal from an order denying a motion to change the venue. That motion was made on affidavits. There, as here, it was contended the affidavits were incompetent. On page 520 of 206 Cal., 274 P. at page 979 the court quoted with approval as follows: “ ‘Whenever the statute, either in express terms or by implication, requires a person to make a statement which from the very nature of things can only be made on information and belief, an affidavit in that form meets the demands of the statute. It is impossible for anyone to swear positively that a particular person is a nonresident of this state, or to say that a nonresident resides at a particular place. In requiring these facts to be stated, the statute does not demand the impossible. * It does intend that the person making the affidavit * shall state these facts upon information and belief—the only possible ground upon which they can be made.’ Smith v. Collis, 42 Mont. 350, 363, 112 P. 1070, 1073, (Ann.Cas.1912A, 1158), Leigh v. Green, 64 Neb. 533, 90 N.W. 255, 101 Am.St.Rep. 592.”

The defendants make some showing to the effect that the judgment was a consent judgment and therefore a motion for a new trial should have been denied. The record does not support them. The notice of intention to move for a new trial was based on the statutory grounds. It was filed February 23, 1938. It was supported by the affidavit of the plaintiffs. In opposition the defendants filed two affidavits of their attorneys, the affidavit of Mrs. Paterson, the affidavit of Margaret K. Hunter, the affidavit of Eva E. Wuestefeld and the affidavit of A.M. Lester. In rebuttal the plaintiffs filed the affidavit of their former attorney. Those instruments are silent on the claim that the judgment was by consent. The record does not disclose that any other evidence was presented to the trial court on the hearing of the motion for a new trial. As noted above the trial court granted the motion on April 19, 1938. True it is that the record contains a stipulation stated in the briefs to have been entered into December 20, 1937. But that stipulation did not appear in the record until May 26, 1938, and there is nothing to show it was before the trial court when the motion for a new trial was made.

The order granting a new trial is affirmed.


We concur: NOURSE, P.J.; SPENCE, J.

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Docket No: Civ. 10901

Decided: July 20, 1939

Court: District Court of Appeal, First District, Division 2, California.

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