164 F.2d 151 | 5th Cir. | 1947
Filed under Section 205(e) of the Emergency Price Control Act,
Calling attention to the fact that the amount awarded was small and the costs of appeal proportionately great, and insisting that it is not the amount involved in, but the badness of the principal established by, the judgment which they are appealing against, appellants earnestly press upon us their árguments for reversal.
Appellee as earnestly insists ■ that the judgment was right in principle, though unduly meager in amount. She invokes the settled rules of state and federal courts alike: (1) That a motion for new trial is directed to the judicial discretion of the trial court, and its ruling thereon will not be disturbed in the absence of a clear abuse of that discretion; (2) that a motion for new trial on the. ground of newly discovered evidence may not be granted unless (a) the facts discovered are of such a nature that they will probably change the result if a new trial is granted, (b) they have been discovered since the trial and could not by the exercise of due diligence have been- discovered earlier, and (c) they are not merely cumulative or impeaching.
A reading of the affidavits tendered in support of the motion leaves us in no doubt that appellee is clearly right. The testimony was at best impeaching. Nor was it of such a nature as that if.received on another trial it would probably change the result. Plaintiff and defendant Brown met head on with reference to the cashing of a check and what was done with the proceeds. The court, as it had a right to do, credited the tenant and not the landlord. The new evidence could have had no other effect than to impeach her by discrediting her testimony in a manner not going to the merits of the case, and it is settled law that “newly discovered evidence, the effect of which is to discredit, contradict or impeach a witness, does not afford a basis for the granting of a new trial.” If the newly discov
The judgment is, therefore, affirmed.
50 U.S.C.A.Appendix, § 925(e).
Moore’s Federal Practice Under the New Federal Rules, Rule 59.02, page 3245 note; 39 Am.Jur., Secs, 156, 176, where a full and satisfactory treatment of the whole subject may be found.