121 Ga. 449 | Ga. | 1904
Amánda A. Sanders, formerly dark, married Charles B. Norman, in Gwinnett county, this State, in 1883, and
There were also exhibits of certified copies, from the War Department, of orders showing that martial law was in operation in Florida in February, 1865, and that Capt. Johnson was then Provost Marshal of the District of Florida; also a certified copy, from the War Department, of an order by the Assistant Adjutant General, dated April 7, 1865, that “all military records, such as files of public letters, letter books, other books and other record books, muster rolls &c., . . required for future reference in the settlement of claims against the government and for other official purposes,” be forwarded by express to the Adjutant General’s office by the officers of discontinued commands, if such records were not necessary for use at the department headquarters. There were also exhibits of ordination of^J. S. Swain as a deacon and elder in the M. E. Church, dated respectively 1836 and 1838, authorizing him to perform the ceremony of marriage, etc. Other exhibits were: The affidavit of J. W. Swain, who deposed that he was the son of J. S. Swain; that he found the
A new trial may be granted when material - evidence, not merely cumulative in its character, but relating to new and material facts, shall be discovered by the applicant after the rendition of a verdict against him; but it must appear that neither the applicant nor his counsel knew of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence. Civil Code, §§5480, 5481. As has been announced in many adjudicated cases, courts view with disfavor and caution, if not with suspicion, motions for new trials on the ground of newly discovered evidence. It is a most salutary requirement that each party is bound, at his peril, to submit on the trial all competent evidence he has at hand. Otherwise trials would be speculative and the end of litigation remote. The general rule, is, that if a party had knowledge of a fact at the trial and it could have been, proved then by evidence other than the newly discovered, a new trial will not be granted, unless the applicant can satisfactorily explain why he did not attempt to use the evidence at hand. 14 Enc. PL & Pr. 802. The principle of this rule has been recognized and followed in many cases. Davis v. Zumwalt, 1 White & W. Civ. Cas. Ct. App. 596; Herman v. Mason, 37 Wis. 273; Huison v. Catoe, 10 So. Car. (Rich.) 311; Bledsoe v. Little, 4 How. (Miss.) 13; Conrad v. Conrad, 9 Phila. 510; Quigley v. Birdseye, 11 Mont. 439; Chapman v. Moore, 107 Ind. 223; Davis Sewing Mach. Co. v. Dunbar, 32 W. Va. 335; Hanley v. Life Asso., 69 Mo. 380 ; Gullett v. Housh, 7 Blackf. (Ind.) 52; Nixon v. Christie, 84 Ga. 496. In Jinks’s case, 117 Ga. 714, it was said: “The •discovery of evidence which is simply cumulative of that of the •existence of which a party knew when the case was tried and which he then might have introduced can not be ground for a new trial.” Applying the rule announced to the "facts disclosed by the record in the present case, did the court err in overruling
Extraordinary motions for new trials, based on the ground of newly discovered evidence, are viewed by the courts with even less favor than original motions on such ground, and a stricter rule has been applied to the former. In Cox v. Hillyer, 65 Ga. 57, it was held: “The extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transaction of human affairs, as when a man has been convicted of murder and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character. Whilst the newly discovered evidence now brought to the attention of this court discloses some facts not in evidence before, yet, in its general character and bearing, it is merely cumulative to the case heretofore presented, and .would scarcely have produced a different result on the ordinary motion for new trial; much less can it give to this proceeding the peculiar characteristic of being ‘ an extraordinary motion.’ ” It was said in East Tenn. R. Co. v. Whitlock, 75 Ga. 77, that the motion for new trial in extraordinary cases provided for in our code was intended in a great degree to take the place of a bill in equity for a new trial; and in Robinson v. Veal, 79 Ga. 633, it was held: “For equity to set aside a verdict at law on account of newly discovered evidence, the evidence discovered must be decisive of the controversy, and there must be no want of diligence to discover it before the trial at law.” In Wimpy v. Gaskill, Ib. 620, it was held: “That, at the time of trial, certain letters relevant to the issue were misplaced, and after diligent search could
Judgment affirmed.