Warner Co. v. Orapello ( 1934 )

BUFFINGTON, Circuit Judge.

This was an action by a widow for damages sustained by her in the death of her husband caused, as was alleged, by the negligence of the defendant. The assignments of error raise the alleged error of the trial judge in refusing to grant a new trial on the ground of after discovered evidence.

The granting of a new trial is a question for a trial eourt, and an appellate eourt has no jurisdiction to review such action, save where the trial eourt has abused the discretion vested in it.

In this case the present appellant filed affidavits setting forth what such evidence was and asked to take proofs to substantiate the allegations in the affidavits. The eourt, in disposing of the motion, assumed the testimony, if taken, would so substantiate the affidavits, but, conceding this, held: “The defendant is now prepared to prove that the plaintiff as surviving widow has suffered no real loss but is on the whole a gainer in that she has oeen rid of a worse than worthless husoana. An all sufficient answer is that the üelenüant nas not brought itself within the well settled rules relating to after discovered evidence. All they now firing forward was as easily within their reacn Before, the trial as afterwards.

Without passing on the question wnether the faets sought to be proved would have been admissible in evidence, we agree with the eourt below that the alleged after-discovered evidence could, by due diligence, have been discovered before trial. We have considered the other questions raised in the assignments and, finding no error, the appeal of the Warner Company, defendant, is dismissed.