Opinion
Decided November 25, 1940.
On exceptions to the granting of a petition for review, brought under R. S., Chap. 103, Sec. 1, Par. II. The statute reads as follows:
"Any justice of the superior court may grant one review in civil actions, . . .
II. When the petitioner shows that a witness testified falsely to material facts against him in the trial of the action, whereby he was surprised, and was then unable to prove the falsity, but has since discovered evidence, which with that before known, is, in the opinion of the court, sufficient proof that the testimony was false; or if the witness has been convicted of perjury therefor."
A careful study of the record compels the conclusion that the petitioner failed to establish any one of the required statutory elements, and instead that the offered proof negatived them.
It is the general rule that the granting of a review under the foregoing section is discretionary, and exceptions will not be sustained as to findings of fact, but only upon rulings of law. When, however, the case is barren of proof of the statutory requirements, and there is nothing to justify the decision, the ruling below is one contrary to law and is an abuse of discretion.
Exceptions sustained.
McLean, Fogg Southard, for petitioner.
Locke, Campbell Reid, for respondent.