120 Minn. 433 | Minn. | 1913
This is an appeal from an order of the district court of Hennepin county granting defendant’s motion for a new trial made on the ground of newly discovered evidence.
The case was before us at the October, 1911, term on an appeal by defendant from an order denying his motion for judgment notwithstanding the verdict or for a new trial, and the order was affirmed. Archer v. Whitten, 117 Minn. 122, 134 N. W. 508. In response to a request that we remand the case, with permission to defendant to move for a new trial on the ground of newly discovered evidence, we stated in the opinion that “the whole matter of leave to make such motion, as well as its decision, rests with the trial court.” The trial court entertained the motion, as it clearly had the power to do, and granted it. We are now asked to' hold that this was an abuse of discretion.
A more doubtful question is whether defendant made a sufficient showing that the existence of the letter could not have been discovered before the trial by the exercise of reasonable diligence. The letter was received July 15, 1910. The trial was April 27, 1911. In substance plaintiff swears that prior to the trial he searched in all places and receptacles for papers that he had, for all data, memoranda, papers, and letters relating to the case, and produced at the trial all those found; that he had no recollection of the receipt of the letter in question until he discovered it accidently on January 25, 1912, in a bundle of receipted bills of a hotel of which he was the proprietor, contained in a box of odds and ends of the hotel property; that he had never tied up the bundle, or put away the papers where they were found, and had no knowledge that they were there, or how they came to be there.
We think this is more than a showing that the existence of the evidence was forgotten. We approve the rule that a new trial on the ground of newly discovered evidence should not ordinarily be granted, when it appears that the only reason for not producing the evidence on the trial is that its existence was. forgotten. But in this case we have a showing of a pretty thorough search for all papers
Order affirmed.