Opinion
April 14, 1948.
April 20, 1948.
Appeals — New trial — Grant — Discretion of lower court — After-discovered evidence.
1. A trial court, which in its discretion has granted a new trial because of after-discovered evidence, is not held on appeal to the same strictness as respects the requirements or incidents of such evidence as where a party seeks to reverse a decision of the trial court for refusing to take such action.
2. Whether or not a new trial shall be granted to let in after-discovered evidence is a matter for the trial court, and in the absence of a clear abuse of discretion the appellate court will not reverse the decision.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and FINE, JJ.
Appeal, No. 103, April T., 1948, from order of C.P., Armstrong Co., Dec. T., 1946, No. 168, in case of Ray F. Yount v. A.L. Whisner. Order affirmed.
Trespass for property damage. Before GRAFF, P.J.
Verdict for defendant on counterclaim; motion of plaintiff for new trial granted. Defendant appealed.
W. Davis Graham, with him Wade E. Heilman, for appellant.
E.O. Golden, with him Matthew A. Crawford and Thomas D. Stauffer, for appellee.
Argued April 14, 1948.
This is a trespass action in which defendant has appealed from the order of the court below granting a new trial, on plaintiff's motion, upon the ground of after-discovered evidence. At the trial of the case the jury returned a verdict in favor of defendant on his counterclaim in the sum of $2,000. Plaintiff filed a motion for a new trial, and among the reasons assigned was that relating to after-discovered evidence.
Appellant on this appeal contends that the alleged after-discovered evidence did not warrant the grant of a new trial in that the affidavits in support of the motion failed to meet the prescribed tests. See Hornick et al. v. Bethlehem Mines Corp, 310 Pa. 225, 228, 165 A. 36; Walters v. Kapiris, 159 Pa. Super. 170, 48 A.2d 35.
But as we said in Kingsdorf v. Frank Gamburg, Inc., 147 Pa. Super. 84, 89, 90, 24 A.2d 140, 142: "We do not hold a trial court, which in its discretion has seen fit to grant a new trial because of after-discovered evidence, to the same strictness as respects the requirements or incidents of such evidence, as we do where a party is asking us to reverse the lower court for refusing to take such action. `Whether or not a new trial shall be granted to let in after-discovered evidence is a matter for the trial court and in such cases we never reverse unless convinced of clear abuse of discretion': Hunter v. Bremer, 256 Pa. 257, 266, 100 A. 809. As succinctly stated by the Supreme Court in Simmons-Boardman Pub. Co. v. American Boron Products Co., 282 Pa. 521, 128 A. 511. `We have not been referred to any case, and we know of none, where an order granting a new trial on the ground of after-discovered evidence has been reversed on appeal; matters of that kind are peculiarly within the discretion of the trial court.'"
In the absence of a clear abuse of discretion by the court below, we will not reverse the order.
The order appealed from is affirmed.