Bradley v. Bradley

• Decision Date: 06 September 1974
• Docket Number: No. 28935,28935
• Citation: 208 S.E.2d 817,232 Ga. 717
• Parties: Hugh C. BRADLEY v. Jeanette C. BRADLEY.
• Court: Georgia Supreme Court

Page 817

208 S.E.2d 817

232 Ga. 717

Hugh C. BRADLEY v. Jeanette C. BRADLEY.

No. 28935.

Supreme Court of Georgia.

Sept. 6, 1974.

Syllabus by the Court

The trial judge did not abuse his discretion in denying the extraordinary motion for new trial based on newly discovered evidence.

Grubbs & Platt, Adele W. Platt, Marietta, for appellant.

Robert S. Whitelaw, Atlanta, for appellee.

GRICE, Chief Justice.

Hugh C. Bradley appeals from the denial of his extraordinary motion for new trial on the ground of newly discovered evidence in the divorce action in the Superior Court of Cobb County, brought against him by his wife, Jeanette C. Bradley, on the ground of cruel treatment.

The appellant filed no defensive pleadings in the divorce action and offered no evidence at the trial.

In his extraordinary motion for new trial he relied on the affidavit of a person who deposed that: he resided 'within sight' of the former home of the parties; for several months prior to their divorce he saw the van of a named man parked outside the Bradley home; this was at various different times of day and of different days of the week for extended periods of time; these periods of time always corresponded to the times that the affiant knew the appellant was not at home; the affiant did not communicate these facts to the appellant or his counsel prior to the divorce and he was not a witness at the trial; he told the appellant of the facts at the time of the sale of the appellant's home, for which the affiant was the real estate agent, 'upon being questioned by him in regard to it.'

An extraordinary motion for new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless his discretion is abused. Pulliam v. State, 199 Ga. 709(1), 35 S.E.2d 250 (one Justice disqualified); Kitchens v. State, 228 Ga. 624(4), 187 S.E.2d 268. Such motions are not favored by the law. Jackson v. Williams, 149 Ga. 505(2), 101 S.E. 116; Patterson v. State, 208 Ga. 689(1), 69 S.E.2d 84.

The trial judge, in passing on the motion, must determine whether the evidence would likely produce a different result upon another trial. West v. West, 200 Ga. 115(1), 35 S.E.2d 914. He must also determine whether the facts could have been obtained before verdict by the exercise of ordinary diligence. Lakes v. Lakes, 171 Ga. 692, 156 S.E. 620.

The appellant argues that the affidavit attached to his motion is evidence of adultery and cruel treatment, of which he was not aware at the time of the trial, and that the evidence would cause a different verdict and judgment as to divorce, child custody, and alimony, if a new trial should be granted.

The affidavit does...