Beinson v. Faiecloth

• Decision Date: 21 November 1888
• Citation: 82 Ga. 185,7 S.E. 923
• Parties: Beinson v. Faiecloth.
• Court: Georgia Supreme Court

7 S.E. 923

(82 Ga. 185)

Beinson

v.Faiecloth.

Supreme Court of Georgia.

November 21, 1888.

1. New Trial—Newly-Discovered Evidence—Cumulative.

Newly-discovered evidence of the same kind as that which was used on the trial, and going to the same point, is cumulative, and therefore not cause for a new trial.

2. Same—Mistake in Testimony.

Discovery, after the trial, that a witness for the prevailing party made a mistake in his testimony, is not cause for a new trial, when a correction of the mistake would not he decisive of the controversy, and when there is no explanation of why the fact touching which the mistake was made was not shown by other witnesses to be what it really was.

3. Trial—Control of Jury.

It is not improper for the court to send the jury, under the charge of a sworn bailiff, to the only public house in the town or village where the court sits, to obtain a meal at the public expense, though the house be kept by one of the counsel in the cause with which the jury is charged; he being also a brother-in-law of his client, in whose favor the verdict was subsequently rendered.

(Syllabus by the Court.)

Error from superior court, Emanuel county; Hines, Judge.

Josiah Holland, T. H. Potter, Cain & Polhill, and Gamble & Hunter, for plaintiff in error. Alfred Herrington and Twiggs & Verder, for defendant in error.

Bleckley, C. J. Brinson, the plaintiff in error, is the step-son of the defendant in error, Mrs. Fair/cloth, formerly Mrs. Brinson. He was the administrator upon his father's estate, in which she, as widow of the deceased, took dower. Before the commissioners made their return, he purchased her dower estate, paid her the price agreed upon, $400, and took her deed of conveyance. She afterwards became dissatisfied with the bargain, and filed her bill for a rescission of the contract, and for cancellation of the deed, alleging fraud and misrepresentation on his part in making the purchase. The jury found in her favor, and he moved for a new trial, which motion the court overruled. The uncontested facts are that the dower lands in the homestead tract, as finally laid off, consisted of 200 acres; that the commissioners to define the dower acted upon the matter twice, —the first time several months before the purchase, and the second time several months afterwards; that they laid off at first 83 acres only; that they reconsidered their action, and determined to increase the quantity to 200 acres; and that after this decision was arrived at some interval elapsed, and then, in the spring of 1886, they actually laid off the 200 acres. Their return was dated in February, filed in March, and made the judgment of the court in December, of that year. The deed from Mrs. Brinson, now Mrs. Faircloth, to Brinson, was executed in October of the previous year, (1885.) It leaves the number of acres blank, and conveys all right, title, or interest she has or may have as her dower in the lands of her late husband, agreeably to a return of the commissioners, "to be made, " etc. The evidence strongly indicates that the reason the commissioners laid off at first only 83 acres was that Brinson, the administrator, did not show to the commissioners all the lands of his intestate, or produce all the title deeds. It was the discovery of this fact which induced them to reconsider. That, before the widow sold to Brinson, the commissioners did reconsider, and agree among themselves to increase the dower in the homestead tract to 200 acres, seems certain. Brinson himself says this was so, and that he so informed her. She denies that he gave her the information, or that she had it from any other source. On the contrary, she alleges and testifies that he represented to her that but 80 acres had been allowed, and in reliance on that statement she made the sale and conveyance, knowing nothing of any reconsideration by the commissioners.

1. A new trial is claimed because of the newly-discovered evidence of Kirk-land, who will testify that Mrs. Faircloth is his sister; that she resided in his family when negotiations were in progress between her and Brinson; that she then knew the commissioners had determined on allowing her 200 acres; that he advised her to sell to Brinson, expressing the opinion that $400 was enough, and that she also thought it sufficient. The whole relevancy of this consists in its bearing upon the disputed question as to whether Mrs. Faircloth knewbefore she conveyed to Brinson that the commissioners had reconsidered their first action, and determined to allow her 200 acres. And on this question it is cumulative, for Brinson testified at the trial that he himself gave her the information. The newly-discovered evidence, therefore, would be more evidence of the same kind to the...