212 N.W. 127 | Iowa | 1927
This is the second appeal of this case to this court. The opinion on the first appeal is reported in
Conceding, without deciding, that, in this action, under Section 12255 of the Code a new trial may be granted on other grounds than those required to obtain a new trial in other *1391
actions, we think that, upon the record, the trial court did not abuse the discretion vested in it, in refusing to grant a new trial in the instant case. There is no showing or claim that the evidence which appellant now alleges is available to her if a new trial is granted, was not available to her at all times. In fact, the record satisfactorily shows that it was so available. There has been no casualty or misfortune or surprise. In its last analysis, the position of the appellant is simply that, through inadvertence and oversight, she did not prove all that was available to her to prove upon the former trial of the case. Granting that, under certain circumstances, the trial court, in the exercise of a sound discretion, may grant a new trial in an equitable action after the procedendo has issued from this court, it is a right seldom exercised, and the discretion of the trial court will not be interfered with by this court unless it appears to have been abused. Where it appears that the evidence sought to be introduced upon the new trial was available at all times to the party applying for such new trial, it cannot be made the basis of ground for a new trial after appeal and the issuance of a procedendo. Chicago, M. St. P.R. Co. v. Hemenway,
EVANS, C.J., and STEVENS and VERMILION, JJ., concur.