
    Edward Kopecky, appellant, v. John Kopecky, administrator of estate of Katherine Kopecky, appellee.
    No. 48235.
    (Reported in 57 N.W.2d 54)
    
      February 10, 1953.
    Ted V. Ruffin and Nicholas E. Lillios, both of Cedar Rapids, for appellant.
    Donald T. Hines, of Cedar Rapids, and Edward R. Boyle, of Clear Lake, for appellee.
   PeR Curiam:

This defendant-administrator obtained judgment (in a former accounting suit) against plaintiff herein. After expiration of time for filing motion for new trial in that case (rules 244 and 247, R. C. P.) defendant therein filed this petition as an independent proceeding, apparently under rule 252(f) notwithstanding rule 253(a) expressly states such petition “must be filed in the original action.” The petition stood denied without answer and the proceeding was triable as an ordinary action. Rule 253. No equitable grounds are alleged so we need not discuss whether that remedy is still available in a proper case under our rules. See author’s comment, 4 Cook, Iowa Rules of Civil Procedure, page 203.

No evidence was introduced, plaintiff relying on a letter and an affidavit attached as exhibits to his petition and apparently assuming tbe record in tbe original case was before tbe court in tbis case.

Tbe trial court denied tbe petition saying: “* * * (passing tbe question of diligence) there is no reasonable probability that tbe alleged newly discovered evidence would lead to a different result.”

Plaintiff appealed and submitted as bis proposed typewritten abstract — rule 340(a), R. C. P. — tbe entire pleadings, evidence, rulings and judgment in tbe original case. Tbe trial court ruled that “tbe only material properly to be included * * * is that contained in tbe record made at tbe time of tbe bearing in tbis cause” and settled tbe record on appeal accordingly.

Defendant filed a motion to dismiss appeal wbicb we ordered submitted with the case. Tbe entire matter is before us on written briefs and oral arguments.

Tbe trial court, in its discretion, probably could have treated tbe proceeding as if filed in tbe original suit as provided by rule 253(a). See, for a somewhat analogous situation, Atkin v. Westfall, 235 Iowa 618, 625, 17 N.W.2d 532.

But we cannot bold failure to do so constituted such abuse of discretion as to be reversible error. Tbe parties proceeded in tbe separate case and rule 253(a) was not called to tbe court’s attention by either. Of course plaintiff might have offered tbe record made in tbe original ease or defendant might have objected to tbe manner of procedure.

Tbe trial court, as a practical matter, was in a position to determine whether there was any reasonable probability of a different result on new trial. We find no basis for a reversal and tbe decision of the trial court is affirmed. — Affirmed.  