ADAMS v. DUNN, 284 Or. 513 (1978)

587 P.2d 466

ADAMS et al, Respondents, v. DUNN et al, Petitioners.

No. 75-2302, SC 24702Oregon Supreme Court.
On respondents’ petition for rehearing filed July 26, former opinion filed July 5, 283 Or. 33, 581 P.2d 939 (1978), petition for rehearing allowed, decision withdrawn, affirmed December 5, 1978

In Banc

Appeal from Circuit Court, Lane County.

F. Gordon Cottrell, Judge.

Richard Bryson, of Bryson Bryson, Eugene, and Calkins
Calkins, Eugene, for the petition.

Scott M. Galenbeck, of Lively Wiswall, Springfield, contra.

Before Denecke, Chief Justice, Holman, Tongue, Howell, Bryson and Lent, Justices, and Gillette, Justice Pro Tempore.

Petition for rehearing allowed; decision withdrawn; affirmed.

GILLETE, J., Pro Tempore.

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GILLETTE, J., Pro Tempore.

Defendants, in their petition for rehearing, point out that in our initial opinion, we erroneously construed the factual content of the record in a way which affects the decision on the merits. Specifically, defendants claim that no affidavit exists in the record which details plaintiffs’ post-trial discovery of the evidence upon which basis plaintiffs sought a new trial.

Upon reexamination of the record, we agree with defendants that our factual statement regarding the existence of that crucial fact in an affidavit was incorrect. This factual misstatement was a necessary underpinning of our conclusion that plaintiffs had met the requirements for the granting of a new trial upon the basis of newly discovered evidence. Without that fact in the record, plaintiffs have failed to show that the newly discovered evidence could not, with the exercise of reasonable diligence, have been discovered before and produced at trial. It follows that our former decision reversing the trial court cannot stand and the trial court’s decision is affirmed.

Petition for rehearing allowed; decision withdrawn; affirmed.

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