State ex rel. Towle v. Boyle

KUNKLE, J.

Complaint is made that the lower court, upon the motion for a new trial, refused to hear oral testimony. This part of the proceeding is found on pages 93 and 94 of the record wherein the court stated that it would hear the motion for a new trial upon affidavits. The court was clearly within its province in making this order.

Sec 11579 GC provides that,

“The application must be made by motion, upon written grounds, filed at the time of making the motion; the causes enumerated in subdivisions two, three and seven, herein-before enumerated, must be sustained by affidavits or depositions, showing their truth, and may be controverted by affidavits or depositions, and ,for this purpose depositions may also be taken in the county where the action is pending.”

The record shows that the witness in question who was to be produced was Laura Thomas. We find among the papers in the case an affidavit of Laura Thomas. This affidavit, however, cannot be considered by the court unless as it is brought in the record in the form of a bill of exceptions under the certificate of the trial court that such bill of exceptions contains all the affidavits introduced upon the subiject. No such bill of exceptions upon the hearing of the motion for a new trial with the requisite certificate of the trial court is before us. The judgment of the lower court will be affirmed.

ALLREAD, PJ, and HORNBECK, J, concur.