Opinion
No. 37,122.
August 6, 1957.
Appeal and error — remand to trial court to enable appellant to move for new trial.
Action in the Blue Earth County District Court for personal injuries allegedly resulting from defendant's negligent construction of a scaffold on which plaintiff was working, in which action a garnishee summons was served upon the Western Casualty Surety Company. After findings for the garnishee, Milton D. Mason, Judge, plaintiff appealed from the judgment entered. Pending the appeal, plaintiff moved for a remand to the district court to enable him to move for a new trial upon the ground of newly discovered evidence. Remanded.
C. A. Johnson and Johnson Johnson, for appellant.
Carroll, Thorson, Anderson Cronan and Herbert C. Davis, for respondent.
A motion by the plaintiff to remand to the district court to enable him to make a motion for a new trial and for a vacation of judgment upon the ground of newly discovered evidence.
Upon examination of the files, records, and affidavits herein we are of the opinion that plaintiff should have an opportunity to present his motion to the district court. We do not consider the merits. The granting of this motion is not a suggestion as to what results should follow. The trial court shall proceed as in ordinary cases and under well-understood rules. Jensen v. Fischer, 132 Minn. 475, 157 N.W. 498; Fyfe v. G. N. Ry. Co. 222 Minn. 490, 25 N.W.2d 219.
It is hereby ordered that the above-entitled case be remanded to the district court to enable the plaintiff to make his motion for a new trial and for a vacation of the judgment upon the grounds of newly discovered evidence.
If the motion is granted, the remand will be absolute. If denied, the proceedings will be certified to this court as a part of the return as expeditiously as possible for further proceedings in this court upon the appeal pending here.