
    Proven Pictures, Inc., of Maine vs. Strand Theatre Operating Co., Inc. et al.
    Cumberland County.
    Decided March 27, 1939.
   In the Superior Court for the County of Cumberland, at the June Term, 1938, a jury was waived, and the trial of the case was to the judge. He, in vacation, that is to say, between the end of that term of court and the beginning of another term, — more specifically, under date of August 17, 1938, — decided the issue, in the sense of awarding judgment, for the plaintiff.

Counsel for defendants appear to have drafted, signed and verified by affidavit, on September 20, 1938, a motion for a new trial, on the basis of newly discovered evidence. A study of the record does not reveal when the motion was filed in court.

The net of it is that not until the February Term, 1939, which, of judicial knowledge, was the fifth term of court since the date the motion bears, and which was subsequent to the handing down by the Law Court (136 Me., 512, 3 A. [2nd], 650,) of its mandate overruling defendants’ exceptions to the rulings and decision of the judge, was an order entered by the Superior Court Justice then presiding, for a commissioner to receive the evidence of sworn witnesses, in support of, and as well against, the allegations of the new-trial motion.

After evidence insisted to support such allegations (opportunity to rebut or impeach which was put aside,) had been taken out, and a report thereof made and authenticated, the case was transmitted to the instant court. R. S., Chap. 96, Sec. 59. The case has been submitted on briefs, without oral argument.

Julius Greenstein, Abraham Breitbard, for plaintiff.

Harry C. Libby, Eugene F. Martin, for defendants.

It is familiar appellate practice, where justice demands such course, to remand causes in order that some defect in the record may be supplied. But, to send this case back, that the record might be put in shape, would do no good in ultimate result.

In the event of a correction of the record, even if the motion for a new trial should be deemed suitable procedure, a point not here raised, the evidence on which the movant relies would be, as to the original issue, — that which the first judge tried and decided, — outside the law’s classification of newly discovered evidence.

The motion for a new trial is denied. It is so ordered.  