Mr. Chief Justice Murray concurred.
The objection of appellant to the misjoinder of parties, and of cause of action, should have been taken by demurrer or answer, and this not having been done they are deemed waived. Sec §§ 40 and 44 of Practice Act.
There was no such abuse of discretion in refusing a new trial as to warrant a reversal. The testimony taken on the trial, and which was admitted without objection, was sufficient to sustain the verdict.
The affidavit of defendant as to newly discovered evidence was insufficient. It appeared that the witnesses named in the affidavit were residents of San Francisco, and it does not appear that their testimony could not, with reasonable diligence, have been procured at the time of trial. If the defendant was prejudiced by the absence of their testitimony, it was the result of his own laches, and want of proper and ordinary care and xliligenee.
It appearing that there is no error in the judgment, it is affirmed with costs.