Wilkes v. Iowa State Highway Commission
Decision Date | 05 May 1971 |
Docket Number | No. 54486,54486 |
Citation | 186 N.W.2d 604 |
Parties | Robert F. WILKES, Appellee and Cross-Appellant, v. IOWA STATE HIGHWAY COMMISSION, Appellant. |
Court | Iowa Supreme Court |
Richard C. Turner, Atty. Gen., James F. Petersen and Henry L. Holst, Special Asst. Attys. Gen. and Counsel to the Iowa State Highway Commission, J. F. Lundgren, Asst. Atty. Gen., Ames, and Paul D. Strand, of Strand & Anderson, Decorah, for appellant.
Miller, Pearson & Gloe, Decorah, for appellee and cross-appellant.
Defendant condemnor appeals from denial of its post-procedendo petition for new trial. Plaintiff condemnee cross-appeals from overruling of his special appearance. We affirm on defendant's appeal.
June 19, 1968, trial jury returned verdicts awarding condemnation damages to plaintiff.
June 27, 1968, defendant filed a new trial motion, sustained January 21, 1969.
Plaintiff thereupon appealed to this court.
November 12, 1969, we reversed and ordered reinstatement of the verdicts. Wilkes v. Iowa State Highway Commission, 172 N.W.2d 790 (Iowa).
December 16, 1969, procedendo accordingly issued.
Defendant then filed a second new trial motion premised upon alleged newly discovered evidence. Ia.R.Civ.P. 244(g). Trial court sustained plaintiff's motion to strike the foregoing.
December 24, 1969, trial court reinstated the verdict, subsequently changed to verdicts by nunc pro tunc order.
The same day defendant filed a petition for new trial, again alleging newly discovered evidence. Ia.R.Civ.P. 252--253.
December 30, 1969, by special appearance, plaintiff challenged jurisdiction of the court regarding defendant's new trial petition.
February 5, 1970, trial court overruled the aforesaid special appearance.
February 10, 1970, plaintiff filed resistance to defendant's new trial petition.
June 5, 1970, trial court denied defendant's Rule 252(f) new trial petition.
June 30, 1970, defendant appealed from that ruling.
July 2, 1970, plaintiff cross-appealed from the February 5th order overruling his special appearance.
In overruling defendant's application to reopen regarding its petition for new trial, for admission of an exhibit, the court stated:
Defendant now argues, despite the foregoing, plaintiff has since enlarged his facilities and continued operation of the sales barn.
Testimony presented during hearing on the aforesaid petition for new trial and resistance thereto discloses plaintiff, (1) discontinued use of stock pens located on the leased condemned tract during the summer of 1968; (2) then reconstructed some pens on adjacent railroad right of way, absent any lease or permissive right; (3) about August 5, 1968, secured leave to use some nearby recently vacated Harmel owned pens; (4) about February 1, 1970, was ordered by the railroad company to vacate its 'squatter' occupied property.
Error asserted by defendant appellant is, in essence, trial court erroneously denied its Rule 252 new trial petition because plaintiff is still in business, fully utilizing his personal property, and the jury verdict as to this personalty was the result of representations he would be out of business, all of which materially influenced the original verdict as to reduction in value of the personalty.
Plaintiff cross-appellant urges error in the overruling of his special appearance.
I. Ia.R.Civ.P. 242 provides: 'A new trial is the reexamination in the same court of any issue of fact or part thereof, after a verdict, or master's report, or a decision of the court.'
And Ia.R.Civ.P. 344(f)(3), states: 'In ruling upon motions for new trial the trial court has a broad but not unlimited discretion in determining whether the verdict effectuates substantial justice between the parties.'
With regard to this last quoted rule, we stated in Vojak v. Jensen, 161 N.W.2d 100, 105--106 (Iowa):
It still remains, however, courts do not favor the granting of a new trial because of newly discovered evidence. Christy v. Heil, 255 Iowa 602, 614, 123 N.W.2d 408. See State v. Compiano, 261 Iowa 509, 516, 154 N.W.2d 845; Tedrow v. Fort Des Moines Community Services, Inc., 254 Iowa 193, 200, 117 N.W.2d 62.
II. Furthermore, 'abuse of discretion' means no discretion to do what was done. Verdicts should not be set aside lightly and the court, in granting a new trial, must be sure there exists sufficient cause to support the exercise of such discretion. Every litigant is entitled to a fair trial, but only one. In re Estate of Springer, 252 Iowa 1220, 1236, 110 N.W.2d 380; Jacobsen v. Gamber, 249 Iowa 99, 101--102, 86 N.W.2d 147; Best v.Yerkes, 247 Iowa 800, 810, 77 N.W.2d 23. See also Perry v. Iowa State Highway Commission, 180 N.W.2d 417, 423 (Iowa). Cf. Cogley v. HyVee Food Stores, Inc., 257 Iowa 1381, 1385--1386, 137 N.W.2d 310.
Proceedings for the taking of plaintiff's property were initiated March 11, 1968. In course of the June 1968, jury trial, plaintiff voiced the aforesaid condemnation related business operation problem. This is the premise upon which defendant now advances its newly discovered evidence claim, i.e., plaintiff has since continued the uninterrupted operation of his sales barn.
III. Inceptionally it must be understood the term 'newly discovered evidence' refers to facts existing at trial time of which the aggrieved party was then excusably ignorant. Brown v. Pennsylvania Railroad Company, 282 F.2d 522, 526--527 (3 Cir.); United States v. Bransen, 142 F.2d 232, 235 (9 Cir.); Butts v. Curtis Publishing Company, 242 F.Supp. 390, 392 (N.D.Ga.); Rogers v. Ogg, 101 Ariz. 161, 416 P.2d 594, 596--597; Cawood v. Cawood, 329 S.W.2d 569, 570--571 (Ky.).
Also, as stated in 66 C.J.S. New Trial § 101, at 294:
'In any but an extraordinary case in which an utter failure of justice will unequivocally result, evidence of facts not in existence at the time of trial, such as evidence which was not available at the time of the trial but rather was the result of changed conditions since the trial, is not generally regarded as constituting a ground for new trial because of newly discovered evidence, * * *.'
See Rogers v. Ogg, supra; Petition of Monson, 180 Neb. 818, 146 N.W.2d 198, 201; State Road Commission v. Hereford, 151 W.Va. 526, 153 S.E.2d 501, 506; 39 Am.Jur., New Trial, § 175. Cf. Annot. 31 A.L.R.2d 1236.
The record before us discloses nothing more nor less than that plaintiff, (1) was damaged by the instant condemnation; (2) expressed an opinion during trial in June 1968, relative to a then anticipated adverse effect thereof on his extant business; (3) arranged a temporary non-permissive...
To continue reading
Request your trial-
Carter v. Carter
...evidence’ refers to facts existing at trial time of which the aggrieved party was then excusably ignorant." Wilkes v. Iowa State Highway Comm'n , 186 N.W.2d 604, 607 (Iowa 1971). The district court determined that the evidence offered by Jason was discovered after trial and could not have b......
-
Benson v. Richardson
...(Iowa 1994); In re D.W., 385 N.W.2d at 583; Mulkins v. Board of Supervisors, 330 N.W.2d 258, 261 (Iowa 1983); Wilkes v. Iowa State Highway Comm'n, 186 N.W.2d 604, 607 (Iowa 1971); 58 Am.Jur.2d New Trial § 423, at 398 (1989). We recognize an exception to this rule in extraordinary cases in w......
-
School Dist. of Wisconsin Rapids v. Flad & Associates of Madison, Inc.
...526-27 (3rd Cir. 1960); Nordin Construction Company v. City of Nome, 489 P.2d 455, 472-73 (Alaska, 1971); Wilkes v. Iowa State Highway Commission, 186 N.W.2d 604, 607 (Iowa, 1971). In so holding, the Nordin court reasoned that '[i]f it were grounds for a new trial that facts occurring subse......
-
Heldenbrand v. Executive Council of Iowa, For Use and Benefit of State
...126 N.W.2d 311, 317, we said: 'Plaintiffs' damages were to be determined as of the date of condemnation.' In Wilkes v. Iowa State Highway Comm., 186 N.W.2d 604, 608 (Iowa 1971), we 'Moreover, it appears defendant instantly seeks a retrial in order to present evidence having all the colorati......