Wingfield v. Rhea

77 Ga. 84 | Ga. | 1886

Hall, Justice.

When this case was here before (73 Ga., 477), we held that Mrs. Wingfield was bound by the judgment rendered in favor of Rhea, cashier, against her husband and herself; that if she had any defence to the suit, she should have urged it before the judgment was entered. Since then, however, she claims that the suit was instituted without notice of any kind or legal service of the writ on her. The jury found this issue in her favor, and the judge, without expressly overruling the other grounds of the motion, granted a new trial upon certain newly discovered evidence tending to show that, at the time of the service of the process, the husband had not changed his domicile from Spalding to Floyd county; and where the husband and wife were living together, it was insisted, and we think correctly, that the law made his domicile hers. It is to bo regretted that the plaintiff in fi. fa. did not take a cross-bill of exceptions to the other grounds of the motion, impliedly overruled by the judgment of the court, which, under several adjudications made by us, would seem to be necessary to enable us to consider the questions made by the overruled grounds. Singleton vs. Southwestern Railroad,70 Ga., 464; Georgia Railroad vs. Letchmorth, 7S Id., 88. Had this been done, there could liave been no doubt as to the propriety of the grant of this new trial, as Mrs. Wingfield was in laches for failing to traverse the return of service by the sheriff at the next term of the court rendering the judgment after she had notice thereof. Code, §3310, and cases ci ted thereunder. But this was the first grant of a new trial on a finding of this issue and should be indulgently treated, unless it could be shown that the presiding judge had abused his discretion in ordering it by a plain disregard of the facts in the case, or a manifest violation of the law arising thereon, and in this instance, that cannot with any show of reason be asserted; the newly-discovered evidence, apart from the rule of law above cited, was material and pertinent to the issue tried, and it would be difficult to assert that it was merely cumulative of other evidence in the case, or that the party had not shown due diligence in procuring it before the trial. It would, we think, be going too far to interfere with the discretion exercised by the judge in reference to the questions arising on this ground of tho motion, especially as justice, under the law and facts of this case, seems to demand another and fuller hearing.

Judgment affirmed.