Gilbreath v. Bain

Decision Date30 October 1924
Docket Number8 Div. 685.
Citation101 So. 762,212 Ala. 100
PartiesGILBREATH v. BAIN.
CourtAlabama Supreme Court

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action in trover by W. N. Bain against Alex Gilbreath. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals, under Acts 1911, p. 449, § 6. Affirmed.

Joe Starnes, of Guntersville, for appellant.

D. Isbell and Claud D. Scruggs, both of Guntersville, for appellee.

GARDNER, J.

The only question presented and argued by counsel for appellant on this appeal relates to the action of the trial court in overruling defendant's motion for a new trial, based upon the ground of newly discovered evidence. One of the prerequisites to a favorable consideration of such motion upon this ground is that it be made to appear due diligence had been unavailingly used by the movant prior to the trial. McLeod v. Shelly Mfg. Co., 108 Ala. 81, 19 So. 326; Fries v. Acme White Lead, etc., Wks., 201 Ala. 613, 79 So. 45; Thomas v. Johnson, 208 Ala. 701, 94 So. 922.

There is no pretense of surprise, accident, fraud, or mistake, but only newly discovered proof, and upon this question, after due consideration of the record, we are rather impressed that the defendant was "stimulated by the verdict to a point of effort which he ought to have reached, but did not, before the trial." De Sota Coal, etc., Co. v. Hill, 188 Ala. 667, 65 So. 988.

Pretermitting a consideration of other suggested reasons leading to an affirmance of the lower court's ruling, we are persuaded that the denial of the motion may well rest upon a failure on defendant's part to show an exercise of due diligence as to the newly discovered evidence.

Let the judgment be affirmed.

Affirmed.

ANDERSON, C.J., and SAYRE and MILLER, JJ., concur.

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7 cases
  • Mutual Building & Loan Ass'n v. Watson
    • United States
    • Alabama Supreme Court
    • April 27, 1933
    ... ... point of effort which he ought to have reached, but did not, ... before the trial," Gilbreath v. Bain, 212 Ala ... 100, 101 So. 762, for Barrett's former dealing was a ... matter of record, and readily ascertained after the verdict ... ...
  • Birmingham Elec. Co. v. Linn
    • United States
    • Alabama Court of Appeals
    • March 16, 1948
    ... ... The ... following authorities support our view: Fulwider v ... Jacob, 221 Ala. 124, 127 So. 818; Gilbreath v ... Bain, 212 Ala. 100, 101 So. 762; Davis v ... State, 245 Ala. 589, 18 So.2d 282; Dawsey et al. v ... Newton, 244 Ala. 661, 15 So.2d 271; ... ...
  • London & Lancashire Ins. Co. v. McWilliams
    • United States
    • Alabama Supreme Court
    • November 8, 1928
    ...the diligence exercised in this respect was "since the verdict was rendered." Woodward Iron Co. v. Sheehan, 166 Ala. 429, 52 So. 24; Gilbreath v. Bain, supra. the newly discovered witness was duly examined orally before the court, and plaintiff was permitted to offer impeaching testimony by......
  • Southside Bank v. Birmingham Truth
    • United States
    • Alabama Supreme Court
    • April 17, 1930
    ...43 So. 121; Hoskins v. Hight, 95 Ala. 284, 11 So. 253. The latter case followed this requirement or corollary of the rule. Gilbreath v. Bain, 212 Ala. 100, 101 So. 762; Fulwider v. Jacob (Ala. Sup.) 127 So. The judgment of the circuit court is affirmed. Affirmed. ANDERSON, C.J., and SAYRE a......
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