Opinion
No. 8060.
Argued April 21, 1960.
Decided April 25, 1960.
Charles W. Laughlin, Richmond, Va., for appellant.
J. Kenneth Lee, Greensboro, N.C. (Major S. High, Greensboro, N.C., on the brief) for appellee.
Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.
After this Court affirmed a judgment awarding damages to the plaintiff, the defendant filed a motion in the District Court under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., by which he sought a new trial upon the ground of newly discovered evidence and fraud. Attached to the motion were the affidavits of three persons stating that the plaintiff rented and planted only three acres of the defendant's land, rather than ten acres as the plaintiff's evidence showed and the District Court found.
Stiers v. Martin, 4 Cir., 264 F.2d 795.
Who his tenants were and what acreage they planted, the defendant knew, though he did not testify at the trial. He knew, also, of the three witnesses whose affidavits he now tenders, but he did not produce them at the trial. He offers no explanation of his failure to produce one of them. The other two, he says, were out of the state at the time of the trial, but the record does not show what, if any, effort he made to locate them and obtain their testimony.
We think the District Judge properly denied the motion upon the ground that the defendant had not shown due diligence to discover this evidence within the time allowed for a motion for a new trial under Rule 59(b) of the Federal Rules of Civil Procedure.
Affirmed.