Moylan v. Siciliano, 16217.
| Decision Date | 31 July 1961 |
| Docket Number | No. 16217.,16217. |
| Citation | 292 F.2d 704 |
| Parties | Francis L. MOYLAN and Yuk Lan Moylan, Appellants, v. Angelina SICILIANO, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Finton J. Phelan, Jr., Agana, Guam, and Fred C. Robbins, Jr., San Rafael, Cal., for appellant.
E. R. Crain, Agana, Guam, and John F. Milne, San Francisco, Cal., for appellee.
Before CHAMBERS, ORR and BARNES, Circuit Judges.
Appellants instituted a suit for specific performance of an installment contract for the sale of certain real property situate in Agana, Guam, and for damages and an accounting. A pre-trial order narrowed the dispute to a single issue, namely, whether the Moylans, appellants herein, had paid to representatives of Mrs. Siciliano, the appellee-vendor, $2,000 in cash on June 12, 1957 as part of an installment due under the said contract of sale.
At the trial appellants introduced into evidence certain cancelled checks and receipts purporting to show the payment of $7,500 to appellee on June 12, 1957. Appellee's witnesses testified that one of the receipts, in the sum of $2,000, had been issued by mistake in transactions carried on between them and Mrs. Moylan. The trial court found in favor of appellee to the effect that appellants pay the additional sum to appellee before they would be entitled to the delivery of a deed to the property. Appellants made the payment and in return promptly accepted a deed to the property and had it recorded. After the acceptance and recordation of the deed, appellants moved for a new trial.
As grounds for a new trial, appellants alleged that they were so "stunned" by the testimony of appellee's witnesses regarding their transactions with Mrs. Moylan on June 12, 1957, that they "could not gather their wits together in sufficient time to advise counsel of rebuttal witnesses * * *" The purported testimony which appellants alleged would be given by a number of witnesses, mostly employees or close friends of the Moylans, was set forth in affidavits filed in support of the motion for new trial. The gist of such proffered testimony tended to prove only that the named witnesses had not seen Mrs. Moylan leave her home or had not seen her at her place of business on the day in question, circumstances which the court could have considered had the offer been timely made.
The trial court denied the motion for new trial. It thought the motion had been rendered moot by the action of the parties in carrying out the terms of the judgment. Appellants urge that the court was in error in finding the motion moot. Be that as it may, the court was correct in its denial of the motion.
Litigants are required to be reasonably alert at trial in the protection of their own interests. If this record could be said to show reasonably genuine surprise on the part of appellants, the remedy would have been to ask for a continuance to allow appellants to "gather their wits" and prepare for the presentation of rebuttal testimony. Cathedral Estates v. Taft Realty Corp., 2 Cir....
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Quick Chek Food Stores v. Springfield Tp.
...780 (D.Mass.1959). The evidence must be such that it was not discoverable by diligent search at the time of trial. Moylan v. Siciliano, 292 F.2d 704, 705 (9 Cir. 1961). Moreover, an application to open a judgment to take additional testimony with a possible consequent amendment of findings ......
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EI DuPont de Nemours v. Phillips Petroleum
...the Court or DuPont.24 Phillips was required to be reasonably alert at trial in the protection of its own interests. Moylan v. Sicilano, 292 F.2d 704, 705 (9th Cir.1961). It had a full and unrestrained opportunity to present evidence on whether Claims 1 and 12 were fully met by the Witt and......
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Romeo v. Sherry, 99-CV-7245 (NGG).
...The Second Circuit has, however, stated that: "[o]nly `reasonably genuine surprise' on the part of the appellant, Moylan v. Siciliano, 292 F.2d 704, 705 (9th Cir. 1961), combined with an assertion of the nature of the additional evidence, Berns v. Pan Am. World Airways, 667 F.2d 826, 829 (9......
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Romero v. City of Pomona
...Grotheer, Jr., Moore's Federal Practice p 59.04, at 33-34 (2d ed. 1987). Further, only "reasonably genuine surprise," Moylan v. Siciliano, 292 F.2d 704, 705 (9th Cir.1961); see also Air et Chaleur, S.A. v. Janeway, 757 F.2d 489, 495 (2d Cir.1985), combined with a reasonably specific descrip......