71 Ga. 775 | Ga. | 1883
We think that there is. It was much a matter of who should be credited, and the witnesses for the defendant in error were disinterested, while for the plaintiff in error all the three are closely related to the defendant in fi.fa., and two of the three will get the property left by the intestate, or part of it, as heirs at law, if the defendant in execution was dead at the time the intestate died. When they testify, therefore, to his long absence, they testify to their interest, to show the legal presumption of his death, and their heirship in his place. Moore, one of the witnesses,
So that on the solitary issue made and tried, to-wit, was Benjamin M. O’Kellv alive when Benjamin O’Kelly died; on the one side is the testimony of one witness wholly disinterested, who saw and talked with him within seven years, the fact that he left, fleeing from a warrant, and the rumor that he left with a disreputable woman, and was living with her in Alabama; and on the other is the fact, sworn to by two witnesses interested to show his death, that they had not heard from him since 1869, something over seven years before the death of the intestate. So that, excluding entirely the evidence of Pierce, who made affidavit that he was mistaken in the O’Kelly about whom he swore, 'it being Benjamin, and not Benjamin M. O’Kelly, the evidence is overwhelming, that defendant injfi.fa. had been seen and heard from within seven years; and the presumption of his death was rebutted by sight of him, rumors about him, a warrant out for him, and a woman leaving with him, so as to alienate him from the old wife and children, and the old home. 1 Kelly, 538; 39 Ga., 509.
Plaintiff in error must have known that this man could not- be the runaway from justice, whom his family had not heard from since he visited them from Florida. What would this stranger want with bagging and ties in' Rock-dale county, Georgia? Ordinary diligence required the plaintiff in error to look into the matter before trial.
Moreover, two of the affiants claim the discovery of the mistake of Pierce,—the son-in-law, who, the moment he heard the interrogatories, went after Pierce, and another affiant who heard the interrogatories, and then meeting Pierce, got into conversation about it with him at Rockdale court, and told the son-in-law about it, and thus he got his information.
In two cases, in 15 Ga., 550, and in 54 Ga., 635, this court granted a new trial grounded on the mistake of a witness. In the first case, the mistake was part of the reason for granting it; in the latter, it was the sole reason. Both were peculiar and exceptional cases. It will not do, except in extraordinary cases, to make such mistake a rule for granting a new trial. It is too tempting to parties to get affidavits of mistake from witnesses, and the temptation and tendency would be too great to bribery and perjury. The case at bar clearly is not such a one as will authorize the grant of a new trial on such a ground.
Judgment affirmed,