In Hibernia Savings & Loan Society v. Moore (1885) 68 Cal. 156, the notice of intent to move for a new trial stated the motion would be based, in part, on affidavits, as well as an agreed statement of the case. In fact, only a statement of the case, and no affidavits, were submitted in support of the motion. The Supreme Court held, in light of the responding party's failure to object, this purposed defect in the form of the notice itself could not be raised for the first time on appeal. (Id. at p. 158.)