313 F2d 879 Knight v. Hersh

313 F.2d 879

John J. KNIGHT and Delia K. Knight, Appellants,
v.
David HERSH and Nettie Hersh, Appellees.

No. 17079.

United States Court of Appeals District of Columbia Circuit.

Argued December 19, 1962.

Decided January 10, 1963.

Mr. Cornelius H. Doherty, Washington, D. C., with whom Mr. Cornelius H. Doherty, Jr., Washington, D. C., was on the brief, for appellants.

Mr. Samuel Shapiro, Washington, D. C., for appellees.

Before BURGER, Circuit Judge, BELL, Circuit Judge for the Fourth Circuit,* and WRIGHT, Circuit Judge.

PER CURIAM.

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1

This case has been here before. Knight v. Hersh, 111 U.S.App.D.C. 361, 297 F.2d 438 (1961). At that time we affirmed the finding of the District Court that appellees had acquired, by adverse possession,1 a three-foot strip of land formerly owned by appellants' predecessors in title. Now the case is before us on appeal from an order denying appellants' motion for relief from judgment filed pursuant to Rule 60(b), F.R.Civ.P., on the basis of alleged newly discovered evidence.

2

This motion addresses itself to the sound discretion of the District Judge.2 In denying it, he filed no written reasons. We believe the denial may be supported on either of two grounds: (1) lack of sufficient showing of due diligence timely to obtain the evidence now offered; and (2) the probability that the newly discovered evidence would not change the result.

3

Affirmed.

Notes:

*

Sitting by designation pursuant to Sec. 291 (a), Title 28, U.S.Code

1

12 D.C.Code § 201 (1961). And see 16 D.C.Code § 1501 (1961)

2

The trial judge also passed on the Rule 60(b) motion