(dissenting.) I am unable to concur in the views of my Associates. I concede, that, if the affidavit of defendant’s officer had stated facts from which the trial court might reasonably have inferred that, in case affiant had been advised' as to the time this action would be called for trial, he would have had the witnesses present for the trial, such affidavit would have entitled defendant to a new trial. But the affidavit stated what was clearly the mere opinion of affiant as to the material fact, and did not set forth anything- upon which such opinion was based. It is perfectly apparent that, if affiant’s opinion as to what he would have done is competent, it would be perfectly competent to meet such opinion with that of another affiant, who would swear that the first affiant would not have had such witnesses present, even though he had been advised of the date the cause would be reached. There might be facts known to each affiant justifying his conclusion, or one or -both of such affiants might have sworn absolutely falsely as regards what he believed would have happened. In either case the court would be without any key to the truth. Upon the other hand, if an affiant sets forth the facts that give rise to the opinion, then the court can. draw inferences therefrom and reach a conclusion based on al*524leged acts. It is the well-settled rule of law — and I know of no authority to the contrary — that:
“The statement in an affidavit of mere matters of opinion * * * is not sufficient. The facts * * should be set forth so that the court may draw its -own inferences.” 2 C. J 350.
It might well be said of this affidavit, as of that in Todd v. City of Crete, 79 Neb. 677, 115 N. W. 307:
“It stated no facts from which the court could say whether the judgment of the witness was propertly exercised.”
—or, as was said of the affidavit in Forbes v. Hyde, 31 Cal. 342:
“It is not the statement of a fact at all. It is merely the statement of the opinion of the witness in relation to a point upon which the judge is required to form his own opinion upon facts which must appear by affidavit. * * * The affiant’s general expression of opinion or belief, without the facts upon which it is founded, is in no sense legal evidence, and does not tend in any degree to prove the jurisdictional facts without which the judge has no authority to make the order.”
This court virtually passed upon this question in Grigsby v. Wopschall, 25 S. D. 564, 127 N. W. 605, 37 L. R. A. (N. S.) 206.
Furthermore this affidavit, because it contains the mere opinion of affiant as to the material fact, fails to meet the one universal test applicable to all affidavits. As stated in 1 R. C. L. m
“The true test of the sufficiency of an affidavit is whether it has been drawn in such a manner that perjury could be charged thereon, if any material allegation therein is false.” 2 C. J. 348.
The impossibility of successfully basing a charge of perjury upon the ■ alleged falsity of a statement of an accused as to what he would have been able to accomplish in the future is perfectly apparent — there could be no perjury established unless it -could be proven that affiant knew, at the time of making the affidavit, that he could not have accomplished what he'swore he would have accomplished. No such difficulty wlo-uld confront one if the accused had made a false statement regarding some fact or facts upon which' such opinion was alleged to be based.