251 F2d 385 Boomhower v. American Automobile Insurance Company J

251 F.2d 385

BOOMHOWER, Inc., Appellant,
v.
AMERICAN AUTOMOBILE INSURANCE COMPANY and Dennis J. Kane, Appellees.

No. 13821.

United States Court of Appeals District of Columbia Circuit.

Argued December 9, 1957.

Decided January 9, 1958.

Mr. Thaddeus G. Benton, Washington, D. C., with whom Mr. Russell Hardy, Jr., Washington, D. C., was on the brief, for appellant.

Mr. Dickson R. Loos, Washington, D. C., with whom Mr. Alexander M. Heron, Washington, D. C., was on the brief, for appellee American Automobile Insurance Co.

Mr. Edward A. White, Washington, D. C., entered an appearance for appellee Kane.

Before WILBUR K. MILLER, WASHINGTON and DANAHER, Circuit Judges.

PER CURIAM.

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1

This is a sequel to Boomhower, Inc. v. American Automobile Insurance Company, 95 U.S.App.D.C. 124, 220 F.2d 488, certiorari denied, 1955, 350 U.S. 833, 76 S.Ct. 67, 100 L.Ed. 743.1 Appeal is now taken from an order of the District Court in that case denying plaintiff-appellant's motion for a new trial under Rule 60(b), Fed.R.Civ.P., 28 U.S.C.A., which alleged newly-discovered evidence.2 The District Court concluded that while this evidence — which appellant argues shows perjury — was of a character tending to impeach the testimony of a witness at the trial, it was not likely to lead to a change in the result reached.

2

We think the District Court did not abuse its discretion. The evidence can only doubtfully be described as newly-discovered: plaintiff-appellant could have taken the witness' deposition or otherwise made timely discovery. Certainly the matter offered does not reach the gravity contemplated by the "any other reason justifying relief" provision of Rule 60(b) (6), even assuming that provision to be applicable here. Cf. Klapprott v. United States, 1949, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266; 3 Freeman, Judgments, § 1241 (5th ed. 1925); 7 Moore, Federal Practice, pars. 60.24, 60.27 (1955).

3

Affirmed.

Notes:

1

See also Boomhower, Inc., v. Boomhower, 1957, 100 U.S.App.D.C. 148, 243 F.2d 254

2

This motion was filed twenty-two months after the District Court's dismissal of the original complaint, and fifteen months after our affirmance of that dismissal