Shafer

Action on promissory note. Plaintiff had judgment, from which and from an order denying motion for a new trial defendants appeal. The complaint asks judgment for three hundred and eighteen dollars and twenty-two cents, balance due of the principal and interest of the note in suit, and fifty dollars as attorneys’ fees. The answer denied that no payments had been made except as admitted in the complaint, and alleged in addition thereto a payment, not credited, of two hundred and forty-four dollars and ninety cents in the form of certain Selma irrigation district warrants. The answer also alleged the tender of sixty dollars before suit was commenced in payment of the balance due on said note, and that on the day of the said tender defendants deposited said sum in the name of plaintiff in the Bank of Selma, a bank of deposit and good repute, and so notified plaintiff. The pleadings are verified. The cause was tried by the court, without a jury, and as facts the court found: That plaintiff was the owner of the note; that all the allegations of the complaint are true, and that there was an unpaid balance of three hundred and eighteen dollars and twenty-two cents due on said note; that…

I concur in the judgment and in the opinion, except that I do not agree that, when a motion for a new trial is based on the ground of newly-discovered evidence, and every material fact in the affidavits is controverted by counter-affidavits, the discretion of the trial court may not be interfered with. The authorities cited do not sustain the proposition, and I think the proposition cannot be sustained on principle or upon a proper construction of the statute.

Section 657 of the Code of Civil Procedure provides that a new trial may (must) be granted “for any of the following causes materially affecting the substantial rights of such party.....4. Newly-discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.”

Now, if a showing is made which satisfies the statute, the party is entitled to a new trial in court according to the law regulating such trials. The court cannot, in lieu of such new trial, determine the issue of fact on affidavits and find that, though such evidence material under the rigid rules especially applied to these motions, and which, if true, would probably…