McKay v. General Acc., Fire & Life Assur. Corp., Ltd., of Perth, Scotland

• Decision Date: 04 June 1931
• Docket Number: 23226.
• Citation: 299 P. 987,163 Wash. 92
• Court: Washington Supreme Court
• Parties: McKAY v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND.

299 P. 987

163 Wash. 92

McKAY v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND.

No. 23226.

Supreme Court of Washington

June 4, 1931

Department 1.

Appeal from Superior Court, Grays Harbor County; William E Campbell, Judge.

Action by T. H. McKay, trustee in bankruptcy of the Reiner Jewelry Company, Inc., and others, against the General Accident, Fire & Life Assurance Corporation, Limited, of Perth, Scotland. From an order granting a new trial to defendant after judgment for defendant had been reversed by the Supreme Court, plaintiff appeals.

Affirmed.

Martin F. Smith, of Hoquiam, and T. H. McKay, of Aberdeen, for appellant.

Thomas G. Grant, of Aberdeen, and Whittemore & Truscott, of Seattle for respondent.

HOLCOMB J.

Upon the original trial of this case in the court below judgment was rendered in favor of defendant dismissing the cause of action of plaintiff from which plaintiff appealed. That judgment was reversed and judgment ordered to be entered in favor of plaintiff and against defendant therein as prayed for in the complaint. McKay v. General Accident, Fire & Life Assurance Corporation, Limited, 158 Wash. 207, 290 P. 820. Thereafter respondent moved for a rehearing and for leave to apply to the trial court for a new trial on the group of newly discovered evidence which could not have been discovered before the original judgment was appealed from which was supported by affidavits presented to this court. The application for a rehearing was denied, but respondent was granted leave to move for a new trial in the trial court. Thereafter respondent filed in the lower court its motion for a new trial supported by affidavits. Appellant filed a number of counter affidavits.

At the hearing, upon the motion for a new trial upon the grounds of newly discovered evidence, the trial judge made certain observations during colloquies between him and the attorney for appellant, by reason of which appellant insists that the trial judge exercised no discretion whatever in passing upon the affidavits and counter affidavits, but took the view that a new trial had been practically ordered by the order of this court. While some statements were made by the trial judge, apparently indicating that he felt compelled to grant the motion because of the order of this court, nevertheless the order of the trial court is general. The order, filed on December 26, 1930, reads: 'This cause coming on for hearing on motion of defendant for a new trial, and the same being argued by counsel, for both parties, and the court being fully advised in the premise, it is ordered that the said motion be and the same is hereby granted. * * *'

It is true we have held, as contended by appellant, that this court has no power to reopen a cause for further new evidence, and when we have authorized the same, after the expiration of the statutory time for such motions to be...