Ethridge v. Hobbs

• Decision Date: 01 February 1887
• Citation: 3 S.E. 251,77 Ga. 531
• Parties: ETHRIDGE, Surviving Partner v. HOBBS and another.
• Court: Georgia Supreme Court

3 S.E. 251

77 Ga. 531

ETHRIDGE, Surviving Partner v. HOBBS and another.

Supreme Court of Georgia

February 1, 1887

Error from superior court, Taylor county; WILLIS, Judge.

Goetchins & Chappell and Jos. F. Pou, for plaintiff in error.

O. M Colbert, Miller & Butt, (by brief,) and Thomas W. Grimes, for defendants.

BLANDFORD J.

This was an action on a promissory note, brought by the plaintiffs in error against the defendants in error. The defendants Bailey & Woodall, pleaded non est factum. A verdict was found in favor of the defendants, Bailey & Woodall; and thereupon the plaintiffs moved for a new trial, which being denied by the court, the plaintiffs bring the case here for review.

1. The first ground of the motion complains that the court erred in refusing to allow plaintiffs' counsel to prove by Abner Woodall, while under cross-examination, that he had authorized J. B. Hobbs to sign his name to notes in Americus prior to 1883. The record in this case shows that Woodall had testified several times that he never did authorize Hobbs to sign his name to any note in Americus, and that he never did authorize Hobbs to sign his name to any note whatever. The object of this testimony is not apparent inasmuch as counsel for the plaintiffs did not state to the court that he expected to prove the fact by Woodall; nor was the purpose stated for which he wished to ask the question. If it was for the purpose of impeaching him, then the foundation had already been sufficiently laid, inasmuch as Woodall had testified that he never did authorize Hobbs to sign his name to any note, and that he never authorized him to sign his name to a note in Americus, and that he (Woodall) signed his own name to all notes that he had signed for Hobbs. Therefore, we think, the court did right not to allow the question to be asked.

2. The next assignment of error is that the court erred in refusing to allow the plaintiffs' counsel, on cross-examination of Woodall, to ask him what was the amount of the note due the Bank of Americus. How this testimony was relevant, the record does not disclose. It is certainly immaterial what was the amount of the note due the Bank of Americus, unless it tended in some way to illustrate some issue in this case, which is not apparent. He who alleges error must show it, and error will not be presumed.

3. The next assignment of error is the newly-discovered evidence of John A. Sheppard; and in connection with this ground of the motion the affidavit of Sheppard is filed, in which Sheppard deposes that Bailey stated to him, when he was on the train about March 25, 1884, he had authorized Hobbs to sign his (Bailey's) name to these notes sued on. Sheppard had been sworn as a witness in this case, and the parties had full opportunity to examine him at length; and it certainly would be going very far for the court to grant a new trial on the ground of newly-discovered evidence from this witness, who had so testified in the case. Besides, the testimony is cumulative, and is impeaching in its character, and this court has frequently held that a new trial will not be granted for newly-discovered evidence which is cumulative and tends to...