Schaefer v. SchaeferSchaefer v. Schaefer
- Reporters:
- , ,
- Before:
- Jenkins
This wаs a suit by Martha Schaefer and Eleanor Schaefer against their cousin, E. W. Schaefеr, on a $1,000 promissory note made payable by him to the plaintiffs. The defendant pleаded that the note had been satisfied in a settlement between him and his father, E. Schaefer, as agent for the plaintiffs. The testimony both for the defendant and the plaintiffs showed an intriсate adjustment of affairs between the defendant and his father. The defendant testified thаt the note sued on was included in the settlement with his father. There was no testimony, however, thаt at the time of such settlement the father produced the note sued on; the only basis of defendant’s contention being that all his transactions were really had with his father, and that thе note payable to the plaintiffs represented no independent transaction with them. This was disputed by the testimony of the father, and presented a question for the jury. There was also a sharp conflict as to whether the note sued on was included in the settlemеnt; but there was no proof that the money collected by the alleged agent under thе settlement ever reached the owners. Neither was there any proof of authоrity from the plaintiffs to the alleged agent to make collections or any settlemеnt of the note. The jury found in favor of the *790plaintiffs, and the defendant excepts to the overruling of his motion for a new trial, based on the general grounds and upon alleged newly disсovered evidence.
The evidence at the trial, though in conflict, fully authorized the vеrdict.
The affidavit by counsel, supporting the motion for new trial, based on grounds of newly discоvered evidence, states merely “that they did not know all the facts set out in movant’s amеnded motion for new trial, and that same could not have been discovered by the exercise of ordinary diligence.” The movant’s affidavit states merely “that he had made evеry effort prior to the former trial of said cause to ascertain all the facts mаterial to the issues involved, but was unable to discover this evidence, and same could not have been discovered by the exercise of ordinary diligence.” These averments amounted to no more than “a mere opinion on their part, and gave no facts by which the court could judge of whether they had used due diligence or not, and whether the evidence could have been discovered before by such use.” Taylor v. State, 132 Ga. 235, 237 (63 S. E. 1116); Baggett v. State, 42 Ga. App. 389, 390 (156 S. E. 276); Trammell v. Shirley, 38 Ga. App. 710 (2) (145 S. E. 486).
Moreover, the аffidavit by counsel states merely “that they did not know all the facts set out in movant’s amended motion for new trial, and that same could not have been discovered by the exercise of ordinary diligence.” It is not shown which of the facts were known or could have been disсovered, and which were not known and could not have been discovered, and the affidavit was therefore defective.
In order to require a new trial because of nеwly discovered evidence, such evidence must be not merely cumulative in its charaсter, but must be material, and it must be apparent that grave injustice would result unless the newly discоvered evidence be admitted at another trial. Civil Code (1910), § 6085; McKinnon v. Henderson, 145 Ga. 375 (3) (89 S. E. 415); Miller v. State, 151 Ga. 710 (2), 713 (108 S. E. 38); Republic Truck Sales Cor. v. Padgett, 30 Ga. App. 474 (10) (118 S. E. 435). The affidavit of the new witness in support of the motion sets out as newly discovered evidence testimony by the witness, emрloyed in the office of a deceased attorney for the defendant, to the еffect that at the time of the negotiations for a settlement the alleged agent “had in his *791possession” the note in question, and that it was the witness’s “distinct understanding that [the defendant] would‘not be required to pay the $1,000 note” unless the alleged agent delivered to the defendant a $5,000 stock-certificate involved in the settlement between them. Thus, even if the affidavits of the defendant and his counsel could be held to come within the requirements of law, the аffidavit of the witness setting forth the newly discovered evidence did not furnish sufficient ground for the grant оf a new trial, for the reason that it merely states that the alleged agent had the notе “in his possession,” but does not state that it was produced, as required by the statute. Civil Code (1910), § 3578; Dibble v. Law, 141 Ga. 364 (2), 367 (80 S. E. 999). It is insufficient also for the reason that it merely states what was the witness’s “distinct understanding,” and does not set forth facts to justify such an understanding. See in this connection, Hutchinson v. State, 8 Ga. App. 684 (70 S. E. 63); Bull v. Carpenter, 32 Ga. App. 637, 640 (124 S. E. 381). The opinionative statement of the new witness, in the absence of opportunity to object thereto upon a trial, can not be taken as of sufficient probative value to require a new trial.
Judgment affirmed.
Stephens, J., concurs. Sutton, J., disqualified.