ADAMS v. THE CITY OF OAKLAND, 8 Cal. 510

Terry, C. J., delivered the opinion of the Court—Burnett, J., concurring. ' In this case, the notice of motion for new trial served, simply informed plaintiff that the “ Court would be moved to grant a new trial.” Afterwards, a statement of the evidence was filed, but no affidavit or statement of the grounds on which his motion was based. The statute provides that a party moving for a new trial ¿shall, within five days after giving notice, make out and file with the clerk, the affidavit required, or a statement of the grounds on which he intends to rely.

If such affidavit or statement be not filed within five days, the right to move for a new trial shall be deemed waived. The statute not having been complied with, we can only consider the judgment-roll, which being regular upon its face, the' judgment is affirmed.