Gay

The petitioner, Lucile D. Gay, is the plaintiff in an action for divorce pending in the superior court of the county of San Diego. The defendant therein, John H. Gay, having filed an answer and cross-complaint, the action was tried, and an interlocutory judgment was rendered, declaring that the defendant, John H. Gay, was entitled to a divorce on his cross-complaint. Subsequently, petitioner served and filed her notice of intention to move for a new trial upon various grounds, including “irregularities in the proceedings of the court which prevented plaintiff from having a fair trial.” The notice stated that the motion would be made upon affidavits and upon a bill of exceptions.

Subsequently, petitioner served her proposed bill of exceptions and affidavits, and filed the affidavits with the clerk of the court. Among the affidavits so served and filed, were two devoted to the attempt to show irregularities in the proceedings of the court—viz., those of Willia Hosmon and Nathan Newby. The defendant in the action in due time served and filed counter-affidavits upon the question as to irregularities of the court, and subsequently petitioner served and left with the clerk for filing…

I concur in the judgment and in what is said in the opinion of Mr. Justice Angellotti, to the point that a court will not grant a writ of mandate where it would be doing a vain thing of no benefit to the applicant, and also in what is said about the affidavit of Newby. But, in my opinion, there is nothing in the affidavits of Willia Hosmon and other affidavits filed by petitioner that by any proper construction can be considered as constituting, or tending in any way to show, an “irregularity in" the proceedings of the court,” within the meaning of subdivision 1 of section 657 of the Code of Civil Procedure.