Brower v. Cothran

75 Ga. 9 | Ga. | 1885

Blandeord, Justice.

A motion for new trial will lie in this state to a decree rendered in an equity case, and as a remedy it is as complete as a motion for new trial at law. Code, §4211. It is more full and complete as a. remedy than a bill for review, in that it reaches all errors of law committed by the court, as well as errors of fact committed in the finding of the jury. A bill of review can only reach such errors as are apparent upon the record.

We think that, since the practice of allowing motions for new trial in equity cases wms adopted in this state, it is necessary for a bill of review to contain some allegations of facts which' have been discovered since the trial, which will show that the decree was improperly rendered, and of which the parly was ignorant, and which he could not have discovered by the use of diligence at or before the trial of- the cause, or some new matter which intervened between the trial and the filing of the bill which will authorize the re-opening of the cause. These allegations must be as strong as are required to be embraced in a bill to set aside a judgment at law and for the grant of a new trial. The same remedies by motion for new trial existing in cases at law and in equity, they stand on the same footing; hence we think that a technical bill of review does not lie in this state, but the same must be a bill in the nature of a bill of review;

In this case, a motion having been made for a new trial, which was dismissed on error to this court, and another motion having been made thereafter on extraordinary grounds, which was dismissed by the superior court, and t his judgment having been affirmed on error to this court, it is too late then for the moving party to file a bill of review, inasmuch as these several motions contained the same errors set forth in the bill of review. So we think the court did right to refuse to enjoin the execution of the decree on this ground. 4 Ga., 550, 570; 38 Id., 195, 174; 43 Id., 564; 41 Id., 221, and other decisions of this court.

In looking at the record of this case, we fail to discover any errors therein. The bill, answers and exhibits thereto, and the verdict of the jury rendered in the case, authorized the decree which was rendered in this case. Whether the jury found right or wrong upon the evidence submitted, or whether the court erred in his instructions to the jury, which may liave led them to make the verdict which they did in this case, cannot be considered upon a bill for review. If the decree is sustained by the pleadings and verdict of the jury, this is sufficient, and there must be an end of the review.

What has been said on this point, disposes of the motion to amend the decree.

The judgment of the court below in both cases must be affirmed.

Judgment affirmed.