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POPOVITCH v. KASPERLIK

November 12, 1947

POPOVITCH
v.
KASPERLIK



The opinion of the court was delivered by: GOURLEY

This matter comes before the Court on motion for new trial filed by Steve Popovitch, plaintiff, pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c. Moore's Federal Practice, Vol. 3, p. 3249.

Rule 59(a) of the Federal Rules of Civil Procedure provides as follows:

 'Rule 59. New Trials.

 '(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.'

 The plaintiff brought this action in equity for cancellation of a deed and after full and complete hearing, the Court entered the following judgment in favor of the defendant: 'Now this 28th day of February, 1947, the Complaint or Bill in Equity filed for the cancellation of the deed referred to therein is refused, and judgment is, therefore, entered in favor of the defendant and against the plaintiff together with the costs of the proceeding.'

 The motion for a new trial filed pursuant to Rule 59(a) of the Federal Rules of Civil Procedure sets forth as follows:

 'And now, March 8, 1947, comes the plaintiff above named and respectfully represents to this Honorable Court:

 '(1) That on February 28, 1947, a judgment was entered in the above case in favor of the defendant as follows:

 'Now this 28th day of February, 1947, the Complaint or Bill in Equity filed for the cancellation of the deed referred to therein is refused, and judgment is, therefore, entered in favor of the defendant and against the plaintiff together with the costs of the proceeding.'

 '(2) That in Finding of Fact Number 12, the Court found, inter alia: 'it was the intention of the parties that the defendant would provide the plaintiff with the necessities and needs which he might require for and during the term of the plaintiff's life if the income, issues, rents and profits therefrom were not sufficient to maintain him in the station of life to which he had been accustomed.'

 '(3) That in Finding of Fact Number 15, the Court found: 'The defendant has not contributed any money to the maintenance and support of the plaintiff since the date of the deed, to wit, September 18, 1941, other than permitting the plaintiff to have all the rents, issues, incomes and profits from said real estate.'

 '(5) That in Finding of Fact Number 19, the Court found: 'The defendant paid no actual money consideration or gave any value for the interest which was received in said real estate. However, the defendant is obligated to provide the plaintiff with such additional income as the plaintiff might need or require for and during the term of the remainder of his life if the rents, issues, profits and income are not sufficient so to do.'

 '(6) That in the trial of the case the plaintiff inadvertently failed or omitted to prove the amount of the annual taxes, insurance premiums and the cost of repairs and maintenance he is required to expend each year for said property.

 '(7) That in the trial of said case the plaintiff inadvertently failed or omitted to prove that after the payment of taxes, insurance and expenses of upkeep and maintenance, that he does not have sufficient income to maintain himself in the station of life to which he has been accustomed.

 'Wherefore, the plaintiff moves this Honorable Court that a new trial may be granted herein only as to the issues set forth in this motion and that he be given leave to present evidence:

 '(a) As to the amount of the annual taxes, insurance premiums and expense of repairs and maintenance of said properties;

 '(b) As to the cost of the plaintiff's maintenance and as to the inadequacy of the income from said properties to maintain him after the payment of taxes, insurance premiums and the expense ...


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