Gruenhagen v. Larson, 246 N.W.2d 565 (Minn. 1976). · Go Syfert
Gruenhagen v. Larson, 246 N.W.2d 565 (Minn. 1976). Cases Citing This Book View Copy Cite
304 citation events (52 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Thompson v. Kromhout (2×) also: Cited as authority (quoted)
Minn. Ct. App. · 1987 · signal: see · quote attribution · 2 verbatim quotes · confidence high
assignments of error which have not been presented to the trial court for consideration will not be reviewed on appeal
examined Cited as authority (verbatim quote) Norwest Bank Minneapolis v. Rutledge (2×) also: Cited as authority (quoted)
Minn. Ct. App. · 1987 · signal: see · quote attribution · 2 verbatim quotes · confidence high
assignments of error which have not been presented to the trial court for consideration will not be reviewed on appeal
discussed Cited as authority (rule) Hunter Daniel Hanlon v. Commissioner of Public Safety
Minn. Ct. App. · 2015 · confidence medium
Thus, even if the argument had been properly asserted in his appellate brief, we would not consider the possibility of a remand because our review would be limited to “whether the evidence sustains the findings of fact, and whether the findings sustain the conclusions of law and the judgment.” See U.S. Bank N.A. v. Cold Spring Granite Co., 802 N.W.2d 363, 370 (Minn. 2011) (citing Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976)); see also Hartman v. Blanding’s Inc., 288 Minn. 415, 423 , 181 N.W.2d 466, 470 (1970).
cited Cited as authority (rule) Bobbie Teeple v. Estate of Dylan Cox
Minn. Ct. App. · 2015 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
discussed Cited as authority (rule) Kaytee Hooser v. Keith Anderson
Minn. Ct. App. · 2015 · confidence medium
Because he did not file a motion for new trial, our review is limited to substantive legal issues properly raised in and considered by the district court, whether the evidence supports the findings of fact, and whether those findings support the conclusions of law and judgment.1 Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303 , 308–310 (Minn. 2003); Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
examined Cited as authority (rule) James Bigham v. Dale W. Kleve (5×) also: Cited "see", Cited "see, e.g."
Minn. Ct. App. · 2015 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976). 1.
discussed Cited as authority (rule) In re the Marriage of: Helen Kernik v. James Kernik, Judith Murphy
Minn. Ct. App. · 2014 · confidence medium
Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 311 (Minn. 2003) (stating that a new-trial motion is not a prerequisite to appellate review of substantive legal issues properly raised and considered in district court); Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976) (stating that absent a motion for new trial, appellate courts may review whether evidence supports findings of fact and whether findings support conclusions of law and judgment).
discussed Cited as authority (rule) Moen v. Sunstone Hotel Properties, Inc.
Minn. Ct. App. · 2012 · confidence medium
As a result of its holding, the supreme court in Rubey remanded to this court “for review of the underlying judgment on appeal as though no new trial/amended findings motion had been made and review to determine ‘whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.’ ” 714 N.W.2d at 425 (quoting Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976)).
discussed Cited as authority (rule) Frazier v. Burlington Northern Santa Fe Corp.
Minn. · 2012 · confidence medium
Finally, the newly discovered evidence “must not be merely collateral, impeaching, or cumulative, but rather, must be such as to have a probable effect upon the result of a new trial.” Gruenhagen v. Larson, 310 Minn. 454, 459 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) U.S. Bank N. A. v. Cold Spring Granite Co.
Minn. · 2011 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976); Meiners v. Kennedy, 221 Minn. 6, 8 , 20 N.W.2d 539, 540 (1945); Potvin v. Potvin, 177 Minn. 53, 54 , 224 N.W. 461, 462 (1929).
discussed Cited as authority (rule) City of Minneapolis v. Minneapolis Police Relief Ass'n
unknown court · 2011 · confidence medium
See Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 309-10 (Minn.2003) (stating that new-trial motion is not prerequisite to appellate review of substantive legal issues properly raised and considered in district court); Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976) (stating that absent motion for new trial, appellate courts may review whether evidence supports findings of fact and whether findings support conclusions of law and judgment).
discussed Cited as authority (rule) U.S. Bank N.A. v. Cold Spring Granite Co. (2×)
Minn. Ct. App. · 2010 · confidence medium
ANALYSIS “In the absence of a motion for a new trial, our scope of review includes substantive legal issues properly raised to and considered by the district court, whether the evidence supports the findings of fact, and whether those findings support the conclusions of law and the judgment.” Baker v. Baker, 733 N.W.2d 815, 819 (Minn.App.2007) (citing Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 310 (Minn.2003); Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976)), aff'd in part, rev’d in part, 753 N.W.2d 644 (Minn.2008).
discussed Cited as authority (rule) Marriage of Baker v. Baker (2×)
Minn. Ct. App. · 2007 · confidence medium
Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 310 (Minn. 2003) (stating that new-trial motion is not prerequisite to appellate review of substantive legal issues properly raised and considered in district court); Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976) (stating that absent motion for new trial, appellate courts may review whether evidence supports findings of fact and whether findings support conclusions of law and judgment).
discussed Cited as authority (rule) Pillandco, Inc. v. State
Minn. Ct. App. · 2006 · confidence medium
ANALYSIS On appeal from a judgment where there has been no motion for a new trial, appellate review is limited to “whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.” Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
discussed Cited as authority (rule) Marriage of Rubey v. Vannett
Minn. · 2006 · confidence medium
We, therefore, remand this case to the court of appeals for review of the underlying judgment as though no new trial/amended findings motion had been made and review to determine “whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.” Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
discussed Cited as authority (rule) Rainforest Cafe, Inc. v. State Investment Board
Minn. Ct. App. · 2004 · confidence medium
ANALYSIS On appeal from a judgment where there has been no motion for a new trial, appellate review is limited to “whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.” Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minnesota
Minn. · 2003 · confidence medium
Aug.13, 2002) (quoting Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976)).
cited Cited as authority (rule) New Horizon Enterprises, Inc. v. Contemporary Closet Design, Inc.
Minn. Ct. App. · 1997 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
discussed Cited as authority (rule) Phong Thi Doan v. Medtronic, Inc.
Minn. Ct. App. · 1997 · confidence medium
When a party appeals from a judgment without having made a motion for a new trial, “the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.” Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 596 (Minn.App.1995) (quoting Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976)).
cited Cited as authority (rule) Marriage of Kahn v. Tronnier
Minn. Ct. App. · 1996 · confidence medium
Warner v. Warner, 391 N.W.2d 870, 873 (Minn.App.1986) (citing Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976)).
cited Cited as authority (rule) State Bank of Cokato v. Ziehwein
Minn. Ct. App. · 1994 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
discussed Cited as authority (rule) Hickerson v. Bender
Minn. Ct. App. · 1993 · confidence medium
ANALYSIS In an appeal from a judgment where no motion for a new trial was made, review is limited to “whether the evidence sustains the findings of fact and whether [the] findings sustain the conclusions of law and the judgment.” Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976). 1.
discussed Cited as authority (rule) State Ex Rel. Andersen v. Reward Corp. (2×)
Minn. Ct. App. · 1992 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
discussed Cited as authority (rule) Brooks v. Doherty, Rumble & Butler (2×)
Minn. Ct. App. · 1992 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Comstock & Davis, Inc. v. G.D.S. & Associates
Minn. Ct. App. · 1992 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976). 1.
cited Cited as authority (rule) Beasley v. Medin
Minn. Ct. App. · 1992 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
discussed Cited as authority (rule) Hennepin County v. Hanneman
Minn. Ct. App. · 1991 · confidence medium
“Where there has been no motion for a new trial the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.” Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) County of Isanti v. Peterson
Minn. Ct. App. · 1991 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Herzig v. Larson-Sawchak
Minn. Ct. App. · 1991 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976) (citations omitted).
discussed Cited as authority (rule) Schweich v. Ziegler, Inc. (2×)
Minn. · 1990 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) In Re Estate of LeBrun
Minn. Ct. App. · 1990 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) O'Kronglis v. Broberg
Minn. Ct. App. · 1990 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Matter of Gonzalez
Minn. Ct. App. · 1990 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Thompson v. City of Red Wing
Minn. Ct. App. · 1990 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) St. Cloud National Bank & Trust Co. v. Woodmen of the World Life Insurance Society
Minn. Ct. App. · 1990 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Citizens State Bank of Hayfield v. Leth
Minn. Ct. App. · 1990 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976); Hardwick v. Hansen, 374 N.W.2d 297, 299 (Minn.Ct.App.1985).
discussed Cited as authority (rule) Marriage of Mahady v. Mahady
Minn. Ct. App. · 1989 · confidence medium
As such, it questions “whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.” Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Town of Belle Prairie v. Kliber
Minn. Ct. App. · 1989 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Williams v. Boswell
Minn. Ct. App. · 1989 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Farrell v. Johnson
Minn. Ct. App. · 1989 · confidence medium
Kramer Plumbing & Heating, Inc. v. Scharmer, 386 N.W.2d 742, 745 (Minn.Ct.App.1986) (quoting Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976)).
discussed Cited as authority (rule) Marriage of Erickson v. Erickson (2×)
Minn. Ct. App. · 1989 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Marriage of Amatuzio v. Amatuzio
Minn. Ct. App. · 1988 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Marriage of Keith v. Keith
Minn. Ct. App. · 1988 · confidence medium
Wenndt v. Wenndt, 398 N.W.2d 7, 9 (Minn.Ct.App.1986) (quoting Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976)).
cited Cited as authority (rule) Matter of Welfare of Sn
Minn. Ct. App. · 1988 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
discussed Cited as authority (rule) Marriage of Joneja v. Joneja (2×)
Minn. Ct. App. · 1988 · confidence medium
Examining the trial court's exercise of discretion, we must decide "whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment." Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Centennial Insurance Co. v. Zylberberg
Minn. Ct. App. · 1988 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
cited Cited as authority (rule) Hoffman v. Halter
Minn. Ct. App. · 1988 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
discussed Cited as authority (rule) Marriage of Griffith v. Griffith (2×)
Minn. Ct. App. · 1987 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 458 , 246 N.W.2d 565, 569 (1976).
discussed Cited as authority (rule) Mattson v. Underwriters at Lloyds of London (2×)
Minn. · 1987 · confidence medium
To this end, there are various rules and principles governing appellate practice, such as the requirements for preserving error below for appellate review, e.g., Minn.R.Civ.P. 51; the rule that parties may be bound on appeal by the theories on which the case was tried below, see, e.g., Annis v. Annis, 250 Minn. 256, 263 , 84 N.W.2d 256, 261 (1957); the rule that an appellate court will not ordinarily consider an issue not first presented to the trial court, Gruenhagen v. Larson, 310 Minn. 454, 457 , 246 N.W.2d 565, 568 (1976); the prohibition against the trial court entering a partial final ju…
cited Cited as authority (rule) Franklin Auto Body Co. v. Wicker
Minn. Ct. App. · 1987 · confidence medium
Gruenhagen v. Larson, 310 Minn. 454, 460 , 246 N.W.2d 565, 569 (1976).
Retrieving the full opinion text from the archive…
RICHARD GRUENHAGEN
v.
CEDRIC LARSON, D.B.A. LARSON AUTO WRECKING
46190.
Supreme Court of Minnesota.
Oct 8, 1976.
246 N.W.2d 565
McPherson Law Offices and Jeffrey S. Ronbeck, for appellant., Fallon, Green, Battis & Wolf, J. Peter Wolf, and Timothy W. J. Dwnn, for respondent.
Todd, Yetka, Scott.
Cited by 138 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: #39,169 of 633,719
Citer courts: Court of Appeals of Minnesota (2)
Todd, Justice.

In this case, respondent, Richard Gruenhagen, bought used cars from appellant, Cedric Larson, for resale. Several of the vehicles were subsequently discovered to have been stolen. Gruen-hagen was obligated to repay his customers and claimed he lost his business as a result of these transactions. Gruenhagen recovered judgment for general and punitive damages. Larson moved for an order vacating the judgment and granting a new trial, based on alleged newly discovered evidence. The motion was denied. Larson appeals from the denial of his motion and from the judgment. We affirm.

Larson operated a wrecking and salvage yard. The record discloses that he would acquire stolen automobiles, replace the serial numbers and license plates with those held in his name, and resell the vehicles. Gruenhagen testified that he had no knowledge, at the time he purchased automobiles from Larson, that such vehicles had been stolen. Gruenhagen took the vehicles to his automobile repair business in Mikana, Wisconsin. There he invested money and time in reconditioning them prior to offering them for resale. Upon being notified by law enforcement officials that the vehicles were stolen property at the time he acquired them, Gruenhagen cooperated by turning over to them those stolen vehicles still in his possession and assisting in locating those which he had already sold.

Gruenhagen testified that as a result of Larson’s fraudulent actions several judgments were obtained against him by persons who had purchased the stolen vehicles from him, and that he was unable to maintain employment thereafter because of levies on his wages as a result of these judgments. In addition, he testified’ that he was forced to sell his business since the community ceased[*456] to patronize it. Gruenhagen submitted evidence of general damages totaling $10,965.80, and also sought to recover punitive damages on the grounds that his credit and reputation were severely injured and that he suffered mental anguish. The jury returned a verdict in Gruenhagen’s favor of $10,000 general damages and $3,500 punitive damages.

Larson was represented by private counsel at the time of the commencement of the action. His first answer to the complaint denied any knowledge that the automobiles in question were stolen. Later, an amended answer was filed admitting Larson’s knowledge that the automobiles were stolen, but alleging that Gruenhagen also knew the automobiles were stolen property at the time he purchased them. During the interim between the original answer and the amended answer, Larson had pled guilty to Federal criminal charges of transporting and selling stolen automobiles in interstate commerce and was sentenced to the Federal prison at Sandstone, Minnesota.

While incarcerated, Larson dismissed his private counsel in this civil action, whereupon Legal Assistance to Minnesota Prisoners (LAMP) assumed his defense. LAMP attorneys negotiated a settlement of this claim to which Larson initially acceded, but Larson subsequently changed his mind and rejected the proposed settlement. LAMP thereupon withdrew as his counsel. Larson then defended himself pro se, drafting the remainder of the pleadings and pretrial motions, and representing himself at the trial which commenced after his release from prison. Larson sought to proceed in forma pauperis, but this motion was properly denied by the trial court on the basis of Larson’s ownership of nonhomestead property. Larson never sought to be represented by appointed counsel or complained in any way about his self-representation.

During the trial, Larson sought and obtained a 1-day continuance in order that he might produce witnesses to testify that Gruenhagen knew at the time he purchased the automobiles from Larson that they had been stolen. One such possible witness was[*457] confined in a Federal penitentiary at the time, and Larson claims he was not aware of the procedures to be followed in securing his testimony in court, but three other witnesses he produced specifically testified that Gruenhagen was aware at the time of his purchases that the vehicles in question were “hot” or stolen.

Following entry of judgment, Larson retained a private attorney who moved the court to vacate the judgment on the basis of newly discovered evidence. This evidence consisted of an affidavit of the aforementioned unavailable witness to the effect that Gruenhagen knew the automobiles were stolen at the time he purchased them. The trial court denied the motion for relief from the judgment, and Larson contends this motion should have been granted.

In addition, Larson raises some alleged errors for the first time during this litigation: (1) Whether the trial court’s admission of evidence of Larson’s Federal court conviction for the interstate transportation of stolen vehicles was erroneous and prejudicial, and (2) whether Larson is entitled to relief from the judgment under Rule 60.02(6), Rules of Civil Procedure, for the reason that he was not adequately prepared for trial because he had no professional legal advice.

The issues for our consideration are:

(1) Should Larson be permitted to raise alleged errors of law for the first time on appeal ?

(2) Is the judgment sustained by the evidence?

(3) Did the trial court err in denying Larson’s motion to vacate the judgment on the ground of newly discovered evidence?

(4) Should the judgment be vacated because of the inadequate defense of pro se counsel?

A well-established, fundamental tenet of appellate jurisdiction is that assignments of error which have not been presented to the trial court for consideration will not be reviewed on appeal. The plethora of Minnesota cases upholding this basic rule are cited in IB Dunnell, Dig. (3 ed.) § 384(2). This court has consistently applied this general principle to preclude the initial[*458] consideration on appeal of the specific alleged error which Larson seeks to raise for the first time on the present appeal, namely, the admissibility of evidence. State v. Ferraro, 277 Minn. 204, 152 N. W. 2d 183 (1967); State v. Johnson, 277 Minn. 230, 152 N. W. 2d 768, certiorari denied, 390 U. S. 990, 88 S. Ct. 1190, 19 L. ed. 2d 1297 (1967).

Larson recognizes that the general rule would bar this court’s consideration of his tardily-raised contention as to the admissibility of the testimony regarding his Federal court conviction, but relies upon the principle that appellate courts possess the inherent power to make exceptions to this rule “if necessary to serve the ends of substantial justice or prevent the denial of fundamental rights.” 5 Am. Jur. 2d, Appeal and Error, § 549. However, one of the two opinions cited by Larson to support this proposition cautioned that the court “will exercise its discretion in this fashion but sparingly,” and the court in that case in fact refused to exercise its discretion to make an exception to the general rule. Hunt v. Deming, 375 Mich. 581, 585, 134 N. W. 2d 662, 664 (1965). Most of the cases in which courts have been willing to make an exception to the general rule have been criminal cases involving the deprivation of life or liberty. Courts have been especially apt to ignore the general rule in capital cases. 5 Am. Jur. 2d, Appeal and Error, § 549. Since what is at stake for Larson in the present case is a property interest, rather than his liberty — let alone his life — the instant case is readily distinguishable from the few cases in which courts have sanctioned deviations from the basic principle that an appellate court may not consider questions raised for the first time on appeal.

Equally well established is the rule that on appeal from a judgment where there has been no motion for a new trial the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment. Potvin v. Potvin, 177 Minn. 53, 224 N. W. 461 (1929); Meiners v. Kennedy, 221 Minn. 6, 20[*459] N. W. 2d 539 (1945); Laabs v. Hagen, 221 Minn. 89, 21 N. W. 2d 91 (1945).

We find that the judgment in this case is sustained by the evidence and that the general and punitive damages awarded were not excessive.

Eule 60.02, Eules of Civil Procedure, provides in part that a court “may relieve a party * * * from a final judgment * * * for the following reasons: * * * (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Eule 59.03 [within 15 days after a general verdict].”

Under the plain language of the rule, Larson is clearly not entitled to relief on the basis of newly discovered evidence, since the record irrebuttably establishes not only that the alleged newly discovered evidence — the witness’ testimony — could have been discovered in time for the making of a motion for a new trial, but furthermore, that such evidence was available and known to Larson during the trial. The judge granted Larson a 1-day continuance during the middle of the trial expressly so that he might secure the witness’ attendance for the purpose of testifying that Gruenhagen knew the automobiles were stolen.

Larson’s claim for relief on this ground is without merit for the additional reason that case law has established that in order for relief to be granted where there is newly discovered evidence, such evidence must not be merely collateral, impeaching, or cumulative, but rather, must be such as to have a probable effect upon the result of a new trial, and this determination is within the trial judge’s discretion. [1] The proffered newly discovered evidence set forth in the witness’ affidavit fails this test in that in probative value it merely duplicates the trial testimony[*460] of other witnesses as to Gruenhagen’s purported knowledge that the automobiles were in fact stolen.

Rule 60.02, Rules of Civil Procedure, also provides relief from judgment for “(6) any other reason justifying relief from the operation of the judgment.” Larson asserts under this rule that justice would be thwarted by a refusal to decide his tardily-raised assignment of error because, as an unlearned layman conducting his own defense, he could hardly be expected to have made technical objections to the admissibility of evidence introduced by opposing counsel at trial.

This argument is rejected for two reasons. First, where a defendant voluntarily chooses to represent himself, ignoring the advice of appointed counsel and failing to request the assistance of other counsel, he should not be permitted, once his defense proves unsuccessful, to insist that the courts should modify their ordinary rules and procedures because he lacked the skills and knowledge of an attorney. In other words, having deliberately made his decision to appear pro se, Larson should not be relieved of any of the consequences of that decision. Secondly, Larson did have the assistance of counsel at the time his motion for relief from the judgment was presented. That motion was premised solely on the claim of newly discovered evidence and did not refer to the other alleged errors which Larson raises on this appeal.

Finally, we note that even if these issues were properly before this court, they appear to be without merit.

Affirmed.

1

See, State v. Smith, 221 Minn. 359, 22 N. W. 2d 318 (1946); State v. Nelson, 91 Minn. 143, 97 N. W. 652 (1903); State v. Mohrbacher, 173 Minn. 567, 218 N. W. 112 (1928); State v. Mastrian, 285 Minn. 51, 171 N. W. 2d 695 (1969), certiorari denied, 397 U. S. 1049, 90 S. Ct. 1381, 25 L. ed. 2d 662 (1970).