Kennedy v. Fidelity & Casualty Co.

PER CURIAM.

While the first appeal herein was pending in this court, the defendant made a motion, which was heard on an order to show cause, to remand the case to the district court to enable the defendant to amend and renew its motion for a new trial on the ground of newly discovered evidence, which was to the effect that since the appeal was taken the defendant had learned that the plaintiff had assigned his verdict. The motion was denied and the order appealed from affirmed and the case remanded. (Supra, p. 1, 110 N. W. 97 .) When the case reached *145 the district court, the defendant made a motion for a new trial on the ground of newly-discovered evidence which was the same as that presented to this court. The district court made its order denying the motion on the ground that the order of this court refusing to remand the case as prayed was made on the merits. The defendant appealed from the order, and the plaintiff moved this court to dismiss the appeal on the ground that it was frivolous.

It must be conceded that the appeal was taken by counsel in good faith and in the belief that the denial of their motion in this court was not upon the merits; hence they had a right to renew it in the district court. Nevertheless, we are of the opinion that the trial court clearly Was right in denying the motion, for the order in this court was made on the merits. Such being the case, the second appeal does not present any substantial question for our decision and must be dismissed. Johnson v. St. Paul City Ry. Co., 68 Minn. 408 , 71 N. W. 619 .

Ordered that the appeal be, and hereby is, dismissed.