Western Ohio Public Service Co. v. Incorporated Village of Yellow Springs

Ohio Court of Appeals

Western Ohio Public Service Co. v. Incorporated Village of Yellow Springs

38 Ohio Law. Abs. 472

CourtOhio Court of Appeals

DecidedFebruary 2, 1943

DocketNo. 475

StatusPublished

Cited by1 cases

This text of 38 Ohio Law. Abs. 472 (Western Ohio Public Service Co. v. Incorporated Village of Yellow Springs) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Western Ohio Public Service Co. v. Incorporated Village of Yellow Springs, 38 Ohio Law. Abs. 472 (Ohio Ct. App. 1943).

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Opinion

[473]*473OPINION

BY THE COURT:

This matter is for hearing upon the motion of the plaintiff-appellant for an order vacating the former judgment of the court entered on August 29, 1942, and for a new trial, for the reason that since -the submission of said cause evidence has come into appellant’s possession which will very probably change the result if a new-trial is granted, which evidence has been discovered since the trial of this cause and which could not in the exercise of diligence have been discovered before the trial and which is material to the issues and not merely cumulative. The appellant in addition moves the court for an order granting it leave to file in this court its amended and supplemental petition, a copy of which is attached to the motion and supported by a positive affidavit. Appellant sets out the substance of the alleged newly discovered evidence which has come to its attention since the trial, and also sets out other matters which it claims is a basis for a new trial. A copy of the proposed amended and supplemental petition is also attached to the motion.

This motion for rehearing requires that we re-examine proceedings as to the trial, the evidence and the order of the court, as the same appears in the record of the case. We also have carefully re-examined our opinion at the time of the trial. We have concluded that the appellant has made no showing that the evidence which it proposes to submit if a new trial is granted was not available at the former trial. We do not believe it is necessary for us to comment in detail upon the matters suggested by the motion for a new trial, as such a re-examination would lead to a practical repetition of the view of the court as set out in its opinion heretofore rendered.

Motion for rehearing and for leave to file amended petition overruled.

GEIGER, P. J„ BARNES and HORNBECK, JJ., concur.

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[473]*473OPINION

BY THE COURT:

This matter is for hearing upon the motion of the plaintiff-appellant for an order vacating the former judgment of the court entered on August 29, 1942, and for a new trial, for the reason that since -the submission of said cause evidence has come into appellant’s possession which will very probably change the result if a new-trial is granted, which evidence has been discovered since the trial of this cause and which could not in the exercise of diligence have been discovered before the trial and which is material to the issues and not merely cumulative. The appellant in addition moves the court for an order granting it leave to file in this court its amended and supplemental petition, a copy of which is attached to the motion and supported by a positive affidavit. Appellant sets out the substance of the alleged newly discovered evidence which has come to its attention since the trial, and also sets out other matters which it claims is a basis for a new trial. A copy of the proposed amended and supplemental petition is also attached to the motion.

This motion for rehearing requires that we re-examine proceedings as to the trial, the evidence and the order of the court, as the same appears in the record of the case. We also have carefully re-examined our opinion at the time of the trial. We have concluded that the appellant has made no showing that the evidence which it proposes to submit if a new trial is granted was not available at the former trial. We do not believe it is necessary for us to comment in detail upon the matters suggested by the motion for a new trial, as such a re-examination would lead to a practical repetition of the view of the court as set out in its opinion heretofore rendered.

Motion for rehearing and for leave to file amended petition overruled.

GEIGER, P. J„ BARNES and HORNBECK, JJ., concur.

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38 Ohio Law. Abs. 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-ohio-public-service-co-v-incorporated-village-of-yellow-springs-ohioctapp-1943.

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