Toledo Scale Co. v. Colleran

• Decision Date: 10 October 1933
• Citation: Toledo Scale Co. v. Colleran, 212 Wis. 502, 250 N.W. 377 (Wis. 1933)
• Parties: TOLEDO SCALE CO. v. COLLERAN.
• Court: Wisconsin Supreme Court

212 Wis. 502

250 N.W. 377

TOLEDO SCALE CO.

v.COLLERAN.

Supreme Court of Wisconsin.

Oct. 10, 1933.

Appeal from an order of the Circuit Court of Milwaukee County; Otto H. Breidenbach, Circuit Judge.

Action by Toledo Scale Company against Edward P. Colleran, who filed a counterclaim. From an order setting aside judgment for plaintiff and granting defendant a new trial, plaintiff appeals.--[By Editorial Staff.]

Reversed, with directions.

Action begun December 26, 1929; order entered June 25, 1932. Plaintiff brought this action to recover moneys which the defendant had collected as his agent and for which he had not accounted. The defendant denied liability and counterclaimed on thirteen separate causes of action. The matter was referred to a referee. The referee made and filed his report, findings of fact, and conclusions of law. He found for the plaintiff in the sum of $662.93 and for the defendant on his counterclaim in the sum of $312.66. The plaintiff had judgment for $350.27, judgment being entered April 30, 1931.

On September 28, 1931, the defendant moved to vacate the judgment and for a new trial upon the ground of newly discovered evidence. The motion was supported by two affidavits made by the defendant and affidavits of three other persons. The plaintiff filed a counter affidavit. On May 20, 1932, the court upon a hearing granted the defendant's motion for a new trial upon the ground of newly discovered evidence. Thereupon the plaintiff moved for a rehearing, and upon the hearing on plaintiff's motion, it was denied. From the order setting aside the judgment and granting a new trial, the plaintiff appeals.Carroll & Thekan, of Milwaukee, for appellant.

Reynolds & Galin, of Milwaukee (H. C. Case, of Milwaukee, of counsel), for respondent.

ROSENBERRY, Chief Justice.

[1] Upon an appeal from an order of the trial court granting relief from a judgment, the order will not be disturbed on appeal unless it appears so clearly wrong as to evince an abuse of judicial power. Gowran v. Lennon, 154 Wis. 566, 143 N. W. 678.

[2][3][4] In order to justify setting aside a judgment and granting a new trial on motion after judgment, the evidence upon which the motion is based must not be merely cumulative. A showing of diligence must be made, and in order to justify a reversal of an order refusing a new trial, it should appear that the newly discovered evidence is of such a character as would probably change the result of the trial. Miller Saw-Trimmer Co. v. Cheshire, 177 Wis. 354, 189 N. W. 465;Gans v. Harmison, 44 Wis. 323;Wilson v. Plank, 41 Wis. 94;Belt Line Realty Co. v. Dick, 202 Wis. 608, 233 N. W. 762.

[5] It is also a familiar doctrine that motions for a new trial on the ground of newly discovered evidence are received with great caution. Conradt v. Sixbee, 21 Wis. 383.

[6][7] In the light of these and other authorities, we have carefully examined the record in this case, and it is considered that the trial court acted under an erroneous view of the law. A motion for a new trial on the ground of newly discovered evidence under section 270.50, Wis. Stats., is not a motion for a retrial of the case upon the whole record and equivalent to a motion for a new trial under section 270.49. The court no doubt was led into this error by the insistence of counsel for defendant, who apparently in the court below, as well as here, sought to reargue all the issues raised by the pleadings as to which evidence was offered and received before the referee. While it is true that section 270.50, under which the motion is made, expressly provides that the motion may be heard upon a bill of exceptions or the judge's minutes or transcribed copy of the phonographic reporter's minutes, the newly discovered evidence must nevertheless be of such a probative force as to bring it within the well established rule. A motion for a new trial upon the ground of newly discovered evidence is not a search of the record made on the trial for error with the hope or expectation that if the judgment be set aside and a new trial granted, the evidence already in the record, together with that which is newly discovered, might produce a different...