
    [No. 3,816.]
    DAVID JACKS v. R. T. BUELL.
    Questions on Motion fob New Tbial.—Questions respecting the sufficiency of the complaint cannot be presented upon a motion for a new trial, nor considered on an appeal from an order denying a new trial.
    Affidavit fob Continuance.—An affidavit stating, that four days prior thereto, the party had placed a subpena for absent witnesses in the Sheriff’s hands, and that the Sheriff had not been able to find tliem, does not show sufficient diligence to obtain a continuance.
    Review of Obdeb Denying Continuance.—A denial of a motion for a continuance cannot be reviewed, except on a bill of exceptions.
    Appeal from .the District Court of the Twentieth Judicial District, Monterey County.
    The action was for rent. After issue was joined, the defendant moved for a continuance on account of the absence of certain witnesses, and, in support of his motion, filed an affidavit, in which the only showing of diligence was a statement that, four days before the date of the affidavit, the subpenas for the witnesses had been issued and placed in the hands of the Sheriff, and that the Sheriff had not been able to find the witnesses. The motion was denied. The next day the cause was tried by the Court without a jury, and judgment was rendered for the plaintiff. The defendant then moved for a new trial on the ground of newly-discovered evidence, and filed affidavits tending to show that he had not had undisturbed possession of the leased premises ; but counter-affidavits were presented by the plaintiff, contradicting such statements. The motion was denied, and the defendant appealed from the order denying it. The transcript contains no bill of exceptions. •
    
      R. T. Buell, in propria persona.
    
    
      William H. Webb and P. Dunlap, for Despondent.
   By the Court:

Upon a motion for a new trial, questions respecting the sufficiency of the complaint cannot be presented, for they are not comprehended in the statutory grounds of the motion; and where an appeal is taken, as here, from the order refusing a new trial, and not from the judgment, those questions cannot be considered by this Court.

The affidavit for a continuance did not show due diligence on the part of the defendant in procuring the attendance of the absent witnesses. But were the affidavit sufficient in this respect, the action of the Court in denying the motion could not be reviewed, because it is not presented by a bill of exceptions. The affidavits are clearly insufficient to entitle the defendant to a. new trial, on the ground of newly-discovered evidence.

Order affirmed.  