Opinion
Nos. 36,708, 36,713.
October 7, 1955.
Appeal and error — remand to trial court to enable appellant to renew motion for new trial — power of Supreme Court.
Action in the District Court for Ramsey County wherein defendant appealed from an order denying its motion for a new trial, Arthur A. Stewart, Judge, and thereafter moved this court to remand the case to district court to enable it to make a motion for a new trial on the grounds of newly discovered evidence. Motion granted.
Cronan, Welsh, Roseen Castor, for appellant.
Lawrence O. Larson, for respondents.
Motion by defendant-appellant to remand to the district court of Ramsey county for the purpose of enabling defendant to renew a motion for a new trial upon the ground of newly discovered evidence, not discovered during the trial below but since the appeal.
This court has jurisdiction to remand a case in order to enable appellant to renew his motion for a new trial upon the ground of newly discovered evidence arising since the appeal. Kroning v. St. Paul City Ry. Co. 96 Minn. 128, 104 N.W. 888; Jensen v. Fischer, 132 Minn. 475, 157 N.W. 498; Fyfe v. G. N. Ry. Co. 222 Minn. 490, 25 N.W.2d 219; see, State, by Peterson, v. Anderson, 207 Minn. 357, 291 N.W. 605.
In determining whether a motion to remand should be granted, our inquiry is limited to whether the showing made is of such nature that the moving party ought to have the opportunity to present the motion to the trial court. Upon an examination of the moving papers we are of the opinion that defendant-appellant has made a sufficient showing. We are not passing or the merits, and the granting of this motion is not a suggestion as to what result should follow below. The trial court will proceed as usual in the ordinary case under the applicable rules.
It is ordered that the case be remanded to the district court to enable appellant to renew his motion for a new trial upon the ground of newly discovered evidence. If the motion is granted below, the remand will be absolute. If the motion be denied, the proceedings will be certified to this court as a part of the return. All proceedings will be conducted without unnecessary delay.
Motion granted.
MR. JUSTICE MURPHY, not having been a member of the court at the time of the submission, took no part in the consideration or decision of this case.