eBook details
- Title: City Mesquite v. Scyene Investment Co.
- Author : Dallas Court of Civil Appeals of Texas
- Release Date : January 02, 1956
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 59 KB
Description
The points first argued on rehearing relate to insufficiency of the Hunter amended affidavit of date July 9, 1955 as raising an issue of fact by way of newly discovered evidence; and similar insufficiency of the Citys unsworn motion and amended motion for new trial. Appellees point 1 will be quoted: "This Court erred in reversing and remanding said cause on the ground that the amended affidavit of Homer Hunter related to matters in the nature of newly discovered evidence, and that the trial court was in duty bound to grant appellant a new trial based solely upon the filing of said amended affidavit with the clerk of the court after trial and rendition of judgment for appellee on July 12, 1955, since (a) the uncontradicted record shows that the amended affidavit related to matters of which appellant and its attorneys of record had both actual and constructive notice for a period of nearly three months before rendition of said judgment; (b) said motion for new trial was not sworn to by either of appellants attorneys of record or by any officer or agent of appellant City; and (c) the unsworn motion for new trial is utterly void of any showing or allegation that appellant and its attorneys of record did not discover the facts to which said affidavit related until after the trial of the cause and judgment rendered thereon." Point 3 asserts error on the further ground that the grant of a motion for new trial is a matter for the trial courts discretion; the instant record not disclosing any arbitrary court action or that such discretionary power has been abused. In this connection, the Citys amended motion for new trial refers to the amended affidavit of Hunter, "dated July 9, 1955 which is on file in this cause and which is hereby incorporated herein as a part of this pleading * * *"; then quoting that part of the affidavit emphasized in original opinion.