Yount v. Whisner

Superior Court of Pennsylvania

Yount v. Whisner

57 A.2d 914, 162 Pa. Super. 524, 1948 Pa. Super. LEXIS 250

CourtSuperior Court of Pennsylvania

DecidedApril 14, 1948

DocketAppeal, 103

StatusPublished

This text of 57 A.2d 914 (Yount v. Whisner) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Yount v. Whisner, 57 A.2d 914, 162 Pa. Super. 524, 1948 Pa. Super. LEXIS 250 (Pa. Ct. App. 1948).

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Opinion

Per Curiam,

This is a trespass action in which defendant has appealed from the order of the court below granting a new trial, on plaintiff’s motion, upon the ground of after-discovered evidence. At the trial of the case the jury returned a verdict in favor of defendant on his counterclaim in the sum of $2,000. Plaintiff filed a motion for a new trial, and among the reasons assigned was that relating to after-discovered evidence.

Appellant on this appeal contends that the alleged after-discovered evidence did not warrant the grant of a new trial in that the affidavits in support of the motion failed to meet the prescribed tests. See Hornick et al. v. Bethlehem, Mines Corp, 310 Pa. 225, 228, 165 A. 36; Walters v. Kapiris, 159 Pa. Superior Ct. 170, 48 A. 2d 35.

But as we said in Kingsdorf v. Frank Gamburg, Inc., 147 Pa. Superior Ct. 84, 89, 90, 24 A. 2d 140, 142: “We do not hold a trial court, which in its discretion has seen fit to grant a new trial because of after-discovered evidence, to the same strictness as respects the requirements or incidents of such evidence,, as we do where a party is asking us to reverse the lower court for refusing to take such action. Whether .or not a new trial shall be granted to let in after-discovered evidence is a matter for the trial court and in such cases we never reverse unless convinced of clear abuse of discretion’: Hunter v. Bremer, 256 Pa. 257, 266, 100 A. 809. As succinctly stated by the .Supreme Court in Simmons-Boardman Pub. Co. v, American Boron Products Co., 282 Pa. 521, 128 A. 511. We have not been referred to any case, and we know of none, where an order granting a new trial on the ground of after-discovered evidence has been reversed on appeal; matters of that kind are peculiarly within the discretion of the trial court.’ ”

In the absence of a clear abuse of discretion by the court below, we will not reverse the order.

The order appealed from is affirmed.

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Per Curiam,

This is a trespass action in which defendant has appealed from the order of the court below granting a new trial, on plaintiff’s motion, upon the ground of after-discovered evidence. At the trial of the case the jury returned a verdict in favor of defendant on his counterclaim in the sum of $2,000. Plaintiff filed a motion for a new trial, and among the reasons assigned was that relating to after-discovered evidence.

Appellant on this appeal contends that the alleged after-discovered evidence did not warrant the grant of a new trial in that the affidavits in support of the motion failed to meet the prescribed tests. See Hornick et al. v. Bethlehem, Mines Corp, 310 Pa. 225, 228, 165 A. 36; Walters v. Kapiris, 159 Pa. Superior Ct. 170, 48 A. 2d 35.

But as we said in Kingsdorf v. Frank Gamburg, Inc., 147 Pa. Superior Ct. 84, 89, 90, 24 A. 2d 140, 142: “We do not hold a trial court, which in its discretion has seen fit to grant a new trial because of after-discovered evidence, to the same strictness as respects the requirements or incidents of such evidence,, as we do where a party is asking us to reverse the lower court for refusing to take such action. Whether .or not a new trial shall be granted to let in after-discovered evidence is a matter for the trial court and in such cases we never reverse unless convinced of clear abuse of discretion’: Hunter v. Bremer, 256 Pa. 257, 266, 100 A. 809. As succinctly stated by the .Supreme Court in Simmons-Boardman Pub. Co. v, American Boron Products Co., 282 Pa. 521, 128 A. 511. We have not been referred to any case, and we know of none, where an order granting a new trial on the ground of after-discovered evidence has been reversed on appeal; matters of that kind are peculiarly within the discretion of the trial court.’ ”

In the absence of a clear abuse of discretion by the court below, we will not reverse the order.

The order appealed from is affirmed.

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Bluebook (online)

57 A.2d 914, 162 Pa. Super. 524, 1948 Pa. Super. LEXIS 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yount-v-whisner-pasuperct-1948.

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