
    KELLEHER v. KENNEY.
    No. 8297;
    November 21, 1884.
    4 Pac. 1095.
    New Trial—Newly Discovered Evidence—Materiality—Reversal.—If alleged newly discovered evidence is merely cumulative, and every material fact is contradicted by counter-affidavits, and an appellate court cannot clearly say that the court below erred in refusing it, the order refusing it will not be reversed.
    APPEAL from the Superior Court of the City and County of San Francisco.
    P. G. Galpin for appellant; Pillsbury & Titus for respondent.
   By the COURT.

Plaintiff moved for a new trial on newly discovered evidence. Affidavits and counter-affidavits were filed. We are not informed, except by the certificate of the clerk, that the affidavits were used on the motion; but, no point being made thereon, we pass to the point presented. The evidence set forth in the affidavits of plaintiff was clearly cumulative. It was in effect denied by the counter-affidavits. The real issue on the trial of the case was whether plaintiff’s intestate had delivered to defendants certificates for the six hundred shares of stock in dispute, not whether they were delivered on the 10th of December, 1877, or on or about the 10th of January, 1878. The date of the delivery was not the material fact. If the alleged newly discovered evidence is merely cumulative, and every material fact is contradicted by counter-affidavits, and the appellate court cannot clearly say that the court below erred in refusing it, the order refusing it will not be reversed: Doyle v. Sturla, 38 Cal. 456. See, also, People v. McCauley, 45 Cal. 146.

Order affirmed.  