Ballard v. Harmon

• Decision Date: 05 September 1947
• Docket Number: 15903.
• Citation: 44 S.E.2d 260,202 Ga. 603
• Parties: BALLARD v. HARMON et al.
• Court: Georgia Supreme Court

44 S.E.2d 260

202 Ga. 603

BALLARD v. HARMON et al.

No. 15903.

Supreme Court of Georgia

September 5, 1947

Syllabus by the Court.

1. The discretion vested in the trial court in refusing to grant a new trial on the ground of newly discovered evidence is never abused where the affidavits relied upon do not conform to the requirements of the Code, § 70-205. Ivey v. State, 154 Ga. 63(6), 113 S.E. 175; Anderson v. State, 190 Ga. 455, 460, 9 S.E.2d 642.

2. Where an extraordinary motion for new trial is based on newly discovered evidence, and a counter-showing is made which tends to refute the evidence relied upon, the action of the trial court in refusing a new trial will not be reversed unless it appears that the discretion vested in such court has been abused. In this case there does not appear to have been any abuse of the discretion so vested.

3. The trial court properly overruled the extraordinary motion for new trial.

On a former appearance in this court the bill of exceptions in the present litigation was dismissed. See Ballard v Harmon, 200 Ga. 813, 38 S.E.2d 427.

The auditor's report was filed on September 11, 1945. Exceptions to the auditor's findings of law and fact were filed by the plaintiff in error on September 29, 1945. On October 1, 1945, the plaintiff in error filed an amendment to his exceptions to the auditor's findings of law and fact and moved the court to recommit to the auditor for further hearing the matters set out in the exceptions and in the motion to recommit. The exceptions and motion to recommit were overruled by the trial judge on December 21, 1945. Exceptions pendente lite were not taken to the order overruling the exceptions of law and fact and the motion to recommit of the plaintiff in error. On December 31, 1945, a final decree was entered by the judge of the superior court. The plaintiff in error excepted in a direct bill of exceptions to the order overruling his exceptions of law and fact to the auditor's report, and his motion to recommit and to the final judgment and decree.

After judgment by this court dismissing the writs of error for failure to make necessary parties (Ballard v. Harmon, supra) the plaintiff in error presented to the judge of the superior court presiding in the cause, on July 22, 1946, an extraordinary motion for new trial based on the ground of newly discovered evidence. Rule nisi was issued to the defendant Harmon to show cause, and he filed a motion to dismiss and a response to the matters set forth in the affidavits attached to the extraordinary motion. The extraordinary motion for new trial was denied on April 12, 1947, and the exception here is to that judgment.

An examination of the exceptions of law and fact filed September 29, 1945, reveals that the matters set forth in the extraordinary motion for new trial were therein set out as newly discovered evidence, except for the affidavit of G. R. Hogg. The only other evidence not before the court on the exceptions of the plaintiff in error is an exhibit to the affidavit of one witness.

While affidavits were attached as to the credibility of witnesses and the diligence of counsel, there were no affidavits as to the associates of the witnesses, nor their means of knowing the facts testified to by them.

R. R. Forrester, of Tipton, and Leonard Farkas and Walter H. Burt, both of Albany, for plaintiff in error.

Jay & Garden, of Fitzgerald, and Hoyt H. Whelchel, of Moultrie, for defendants in error.

HEAD, Justice (after stating the foregoing facts).

Only the third syllabus of the opinion requires any further statement or explanation.

'A judgment of a trial court, which after a writ of error stands unreversed, or to which no exception has been taken, is the law of the case.' Palmer...