151 Minn. 314 | Minn. | 1922
This is an action for the rescission for fraud of a contract of purchase by the plaintiff of stock in the defendant J. L. Owens Manufacturing Company and for the recovery of the money paid. The trial court found the fraud charged. It found that the plaintiff was guilty of laches and for that reason denied a recovery. The plaintiff appealed to this court from an order denying her motion for a new trial, and the order was reversed. 149 Minn. 130, 182 N. W. 960. Afterwards the plaintiff moved in this court for an amendment of the order of reversal so as to direct the entry of judgment in her favor. The theory of the motion was that since the court below had found fraud, and this court had determined that there was no laches, the plaintiff should recover. The motion was resisted. The court in disposing of it made this order:
“The order remanding this cause will be and is amended to read ■ as follows: It is therefore ordered, that the order appealed from be reversed with directions to the court below to render judgment for*316 plaintiff for the amount claimed in the complaint, subject to the right of defendant to move the court below for a new trial of the issue of laches.”
The defendant Owens Company then moved ifor a new trial and assigned newly discovered evidence as one ground. The motion was denied. Both companies join in the notice of appeal though but one made the motion. This does not seem important.
The order permits no other construction than that the court limited the presentation of the motion and its ruling thereon to the issue of laches.
A party defeated on appeal is not required to ask that the mandate give him leave to move for a new- trial upon tlie ground of newly discovered evidence. Thus, in Archer v. Whitten, 117 Minn. 122, 134 N. W. 508, Justice Bunn said:
“We are asked to remand this case, with permission to defendant to move the trial court for a new trial on the ground of new evidence discovered since the appeal was taken. The whole matter of leave to make such motion, as well as its decision, rests with the trial court.”
The final result is that the trial court’s denial of the defendant’s motion for a new trial so far as directed to laches was proper. The motion based upon the ground of newly discovered evidence was properly presented and should have been considered. If the defendant is aggrieved by the finding of fraud, or in the determination of a question not concluded by the determination on the issue of laches, it has its remedy.
The order denying a new trial is affirmed so far as it denies the motion for a new trial on the issue of laches, and is reversed so far as it refuses to consider the ground off1 newly discovered evidence upon which the motion is in part based; and the case is remanded with directions to consider the motion on such ground.
Order affirmed in part and reversed in part and case remanded.