41 S.E.2d 878 | Ga. | 1947
Where an extraordinary motion for new trial is based upon alleged newly discovered evidence, and there is no attempt to comply with the rule of law applicable to such a motion as set forth in the Code, § 70-205, it is an abuse of discretion to grant such a motion.
(a) A contention by the movant that a decision by the Supreme Court was based upon matters not put in issue by the pleadings, evidence, or charge, where the record shows that each made such issue, will not excuse non-compliance by the movant with the above requirements of law.
At the hearing the only evidence produced was an affidavit by A. J. Evans which in substance supported the allegations of the motion. No supporting affidavits were produced. The original petition alleged in paragraph 2 that the defendant was indebted to the plaintiff on the notes sued upon. Paragraph 2 of the original answer denied paragraph 2 of the petition in toto. Paragraph 5 of the original answer alleged that "This defendant denies that the petitioner is the holder of the notes sued upon." By an amendment dated December 4, 1936, the defendant alleged in paragraph 26 that the petitioner, Mrs. Willie Belle Evans, "was never the holder for value before maturity of the notes sued on in this case." In paragraph 28 of the same amendment it was alleged, "Defendant further says that the notes sued on in this case and the lease contract executed with the notes are still the property of A. J. Evans."
The charge of the court submitting the case to the jury contained this language: "One of the important issues is: To whom did these notes belong? Who had possession of these notes when this suit was filed?"
A ground of a motion for new trial based upon newly discovered evidence, as provided in the Code, § 70-204, must meet fully the requirements of § 70-205. The latter section requires that such a ground must be supported by an affidavit of the movant and each of his counsel that they did not know of the newly discovered evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence; and if the newly discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced. There was no attempt here to comply with these statutory requirements. This rule must be applied more strictly in this case of an extraordinary motion for new trial. Norman v. Goode,
But it is contended by the movant that the rule should not be applied here for the reason that, as contended in the extraordinary motion, the previous decision of this court was based upon questions not put in issue by the pleadings or evidence or the charge, and, hence, no amount of diligence could have enabled the movant to have produced upon the trial the alleged newly discovered evidence. The excerpts from the evidence and the charge in the foregoing statement of facts, together with the testimony of A. J. Evans set out in the opinion on the previous appearance of the case, wherein he testified that the endorsee never had possession of the notes, demonstrate the total absence of any foundation for this contention. Accordingly, the court erred in granting the motion.
Judgment reversed. All the Justices concur.