Dade Nat. Bank of Miami v. Kay, 60-472

• Decision Date: 05 June 1961
• Docket Number: No. 60-472,60-472
• Parties: DADE NATIONAL BANK OF MIAMI, Appellant, v. Sam KAY et al., Appellees.
• Court: Florida District Court of Appeals

Page 24

131 So.2d 24

DADE NATIONAL BANK OF MIAMI, Appellant, v. Sam KAY et al., Appellees.

No. 60-472.

District Court of Appeal of Florida, Third District.

June 5, 1961.

Rehearing Denied June 28, 1961.

Scott, McCarthy, Preston, Steel & Gilleland and Dwight Sullivan, Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, for appellant.

Burnett Roth, Miami Beach, Sarino R. Costanzo, Worton, Cline & Manker, Miami, for appellees.

HORTON, Chief Judge.

Appellant bank seeks reversal of an order granting a new trial on the ground of newly discovered evidence.

The bank, as plaintiff, initiated an action in the trial court against appellees Kay, Kligmann and Williams, guarantors on certain loans made to appellee Air International by the bank. One Strauss, also a guarantor, was joined as a defendant in the action but was later dismissed. The trial court directed verdicts against Kligmann and Williams. There was presented to the jury the issue raised by appellee Kay's answer wherein he denied executing the instrument of guarantee and affirmatively asserted that his name affixed to the instrument was a forgery. This issue was decided adversely to appellee Kay by the jury's rendition of a verdict in favor of appellant bank.

In addition to testimony of handwriting experts presented by both parties, the record also contains the testimony of a bank official who testified that appellee Kay had admitted signing the guarantee. This official further testified as to other acts of appellee Kay which tended to establish that he considered himself a guarantor on the loans. Appellees Williams and Kligmann both testified as to the circumstances surrounding the signing of the guarantee and in addition, the deposition of Strauss was read to the jury. None of these witnesses testified that they had seen appellee Kay sign the guarantee. Although Kay testified that he had not signed the instrument, the jury returned verdicts in favor of the bank and against Kay. Subsequently, Kay moved for a new trial based upon an affidavit wherein Kligmann stated that he had personally seen Strauss forge Kay's name to the guarantee. Pursuant to this motion, supported by the affidavit, the trial court set aside and vacated the verdict and granted a new trial to the appellee Kay. In doing so, the trial court said:

'One is entitled to the trial of his cause before a jury which has before it all of the evidence. The failure to produce this new evidence at the trial cannot be attributable to negligence or the want of diligence, particularly under the circumstances of this cause and the interests of the several parties. It is not in the interest of the affiant, Joseph Eugene Kligmann, to make the affidavit which is attached to the motion for new trial. This cause involves purely circumstantial evidence. The newly discovered evidence is of such a conclusive nature and of such decisive and preponderating character that it is reasonable to believe that the jury probably would have changed its verdict had this evidence been presented to it. If this evidence had been presented, the jury would have had the opportunity of weighing its credibility, its materiality being evident, and a verdict against Mr. Kay then would have been manifestly against the weight of the evidence. We are not here concerned with the recanting of testimony by any witness. The newly discovered evidence is material, not cumulative, and of such a character that if believed by the jury, would have necessitated a different result.'

There is no question that an application for new trial is directed to the sound discretion of the trial court. Cloud v. Fallis, Fla.1959, 110 So.2d 669, and 23 Fla.Jur., New Trial, § 86, and cases collected therein. However, applications for new trial, based upon the ground of newly discovered evidence, are considered by the courts with a certain amount of disfavor. See Florida East Coast R. Co. v. Knowles, 68 Fla. 400, 67 So. 122; Vining v. American Bakeries Co., 121 Fla. 116, 163 So. 396. And as observed by the Supreme Court in Alston v. Shiver, Fla.1958, 105 So.2d 785:

'The established general rule is that a motion for new trial based upon newly discovered evidence will not be...