King v. Larsen

235 N.W.2d 620 (1975)

Warren B. KING and John P. Lommen, d. b. a. King and Lommen, Respondents, v. Norman W. LARSEN, Appellant.

No. 45542.

Supreme Court of Minnesota.

November 21, 1975.

*621 Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, O. C. Adamson II, and W. D. Flaskamp, Minneapolis, for appellant.

Maurice H. Rieke, Minneapolis, for respondents.

Considered and decided by the court without oral argument.

PER CURIAM.

Defendant appeals from a judgment of the District Court of Hennepin County. The only issue raised on appeal is whether the trial court erred in denying defendant's motion to reopen to take further testimony of one of the witnesses at trial.

Allowing a party to reopen his case for the purpose of presenting additional testimony is a matter within the discretion of the trial court, and his action will not be disturbed on appeal absent a showing of abuse of that discretion. Hamilton v. Killian, 296 Minn. 256, 207 N.W.2d 703 (1973); State, by Lord v. Casey, 263 Minn. 47, 115 N.W.2d 749 (1962); 19A Dunnell, Dig. (3 ed.) § 9716.

By affidavit in support of the motion to reopen, the proposed witness stated that he had read the transcript of his testimony at trial and found that his testimony did not "reflect the true state of affairs." It is apparent that this witness intended to recant his prior testimony. Defendant offers no reasonable excuse for the disparity between the witness' sworn testimony at trial and sworn affidavit. We have stated that a mere inadvertence is not sufficient to require the reopening of a case to receive new evidence. State ex rel. Trevarthen v. City of Eveleth, 179 Minn. 99, 228 N.W. 447 (1929). We find that the trial court did not abuse its discretion in denying defendant's motion.

Affirmed.