Wallace v. Franz

68 F.2d 313, 1933 U.S. App. LEXIS 4945

Opinion

PER CURIAM.

The motion for leave to file a motion for leave to file a bill of review in the District Court (including that motion), presented and argued to this court, was based upon two grounds of alleged newly discovered evidence and new matter. The facts relied upon as to each ground are facts sufficiently within the judicial notice and the records of the court to enable the court to exercise the discretion which the court is called upon to exercise in ruling upon the motion.

Careful consideration of the motion and the argument has convinced that no sufficient showing of newly discovered evidence or new matter is disclosed to sustain the motion herein. We are not persuaded that either the fluctuation of the stock of the Burroughs Adding Machine Company of Michigan, as reflected by the quotations upon the New York Stoek Exchange, or the course of litigation in the case of Johanna F. Fiske v. State of Missouri, 62 F.(2d) 150, this court, presents new matter or newly discovered evidence of the kind that is required to justify the very rare and extraordinary remedy by bill of review.

Therefore, the motion is denied.

STONE, Circuit Judge, dissents.