Opinion
Appeal from the District Court of the Third Judicial District, County of Alameda.
Appeal from an order overruling a motion for a new trial.
COUNSEL:
C. Campbell, for Appellant.
E. R. Carpentier, for Respondent.
JUDGES: Terry, C. J., delivered the opinion of the Court. Burnett, J., concurring.
OPINION
TERRY, Judge
In this case, the notice of motion for new trial served, simply informed plaintiff that the " Court would be moved to grant a new trial." Afterwards, a statement of the evidence was filed, but no affidavit or statement of the grounds on which his motion was based.
The statute provides that a party moving for a new trial shall, within five days after giving notice, make out and file with the clerk the affidavit required, or a statement of the grounds on which he intends to rely. If such affidavit or statement be not filed within five days, the right to move for a new trial shall be deemed waived.
The statute not having been complied with, we can only consider the judgment-roll, which, being regular upon its face, the judgment is affirmed.