On motion of one of several defendants the superior court ordered a new trial of this cause, and plaintiff appeals from the order.
After the transcript was filed the respondent suggested a diminution of the record and moved to amend the transcript by the addition of certified copies of affidavits alleged to have *Page 63 been used in support of his motion for a new trial. In denying that motion to amend we have practically decided this appeal.(Skinner v. Horn, 144 Cal. 278.) We held that a party appealing from an order must bring up a record demonstrating conclusively that the lower court erred in its ruling or must fail in his appeal, and that an order granting a new trial must be affirmed when the record contains nothing but a statement on motion for a new trial, and fails to show that the motion was not based also upon one or more of the grounds which require affidavits for their support. Such is the condition of this record. It contains a settled statement on motion for a new trial, and there also appears in the transcript what purports to be a copy of respondent's notice of his intention to move. But this notice of intention is not incorporated in the statement or in any bill of exceptions, and, therefore, is no part of the record. (Pico v.Cohen, 78 Cal. 384.) If we could consider it, we might be justified in assuming that the motion for a new trial must have been based exclusively upon the grounds covered by the statement. But we have no more right to consider this notice of intention than we have to consider the affidavits which we have refused to order certified upon the ground that they are no part of the record. Non constat, therefore, that the order granting a new trial was not supported by affidavits disclosing newly discovered evidence, or some other of the first four grounds for the motion. (Code Civ. Proc., sec. 657.)
The order is affirmed.
Shaw, J., Angellotti, J., Van Dyke, J., McFarland, J., Lorigan, J., and Henshaw, J. concurred.