I. The second affidavit of Archibald was inadmissible, because too late (Pr. Act, 195); and the Court below properly refused the new trial. ( Casey v. Silverthorn , 9 Cal. 67; Wing v. Owen, Id. 247; Lafferty v. Brownell , 11 Id. 132.)
II. But, conceding the admissibility of the second affidavit of Archibald, the matter therein is insufficient to authorize a new trial. The rule is that a new trial ought to be granted when a material witness has discovered that he testified incorrectly, by mistake, and against the interest of the petitioner for a new trial. (1 G. & W. on New Trials, 217-18.)
The affidavit does not come within the rule. Archibald has now no fixed impression as to the west or dividing line. The point attempted to be made is, that witness did not run a west line, in the year 1854, for Judge Stidger; or that if he did, he misstated its position, by placing it too near the " old shaft; " but upon neither point is the affidavit explicit, inasmuch as it fails to show that a west line was or was not run; and of course, says nothing about the position of the shaft.
Again, the affidavit does not satisfy the law, because it fails to show that the mistake was injurious to the petitioner. Swearing to a mistake is not at all sufficient; it mustbe a mistake, upon a material point, injurious to the complaining party.
III. If the plaintiffs were surprised at the testimony of Archibald, they should have requested to be nonsuited. (1 G. & W. on New Trials, 199.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
BALDWIN, Judge
In passing upon applications for a new trial, much must be left to the discretion of the Judge below; and we interfere reluctantly with the exercise of that discretion. Two affidavits were made by the witness Archibald--the last some months after the first, and after the time for filing affidavits or statements on the motion had elapsed. The Court was not bound to receive this last affidavit, and should not have considered it unless some good reasons were shown. But it was not bound, after having received it, to give it conclusive effect, especially as the affidavit is not definite as to the fact of mistake in the testimony on the trial. A very clear showing of mistake by the witness as to a material fact deposed to by him should be made, to induce the Court to grant a new trial on this ground, and then it should appear that the mistake was injurious to the party, and that he had no means or had used due diligence to counteract the mistake or to correct it. In a long and severely litigated case, with many witnesses, it would scarcely ever happen that some of them would not be willing to depose that his language when on the stand needed some qualification, or that his memory was confused or uncertain as to some fact to which he had sworn without properly qualifying his statements. It would be a premium for importunity and improper arts, though there is no suspicion of such a course here, to hold that a new trial should be granted whenever a witness was willing to qualify the statements he made on the stand. At any rate, we would not be justified in holding that the Court below erred in refusing to grant a new trial for the cause assigned.
The other points do not seem to be well taken. Judgment affirmed.