Holder v. Farmers' Exch. Bank Of Stillmore

• Decision Date: 25 June 1923
• Docket Number: (No. 13931.)
• Citation: 30 Ga.App. 400,118 S.E. 467
• Parties: HOLDER et al. v. FARMERS' EXCH. BANK OF STILLMORE.
• Court: Georgia Court of Appeals

30 Ga.App. 400

118 S.E. 467

HOLDER et al.

v.FARMERS' EXCH. BANK OF STILLMORE.

(No. 13931.)

Court of Appeals of Georgia, Division No. 2.

June 25, 1923.

(Syllabus by the Court.)

"The extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transaction of human affairs, as, when a man has been convicted of murder, and it afterwards appears: that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character. Cox v. Hillyer, 65 Ga. 57." Harris v. Roan, 119 Ga. 379 (2). 46 S. E. 433; Norman v. Goode, 121 Ga. 449 (1), 49 S. E. 268.

Where a motion for a new trial, made at the term of the court at which the verdict complained of was rendered, was overruled, and the decision was affirmed by this court, to authorize a second motion, the extraordinary state of facts relied upon in support of the motion must have been unknown both to the movant and his counsel at the time of the first motion and impossible to have been ascertained by the exercise of proper diligence for that purpose. Malone v. Hopkins, 49 Ga. 221 (1).

"A stricter rule is applied to extraordinary motions for new trial, based on newly discovered evidence than to ordinary motions based on that ground. Norman v. Goode, 121 Ga. 449, 49 S. E. 268." Jackson v. Williams, 149 Ga. 505 (2), 101 S. E. 116.

In addition to the necessity of a showing of proper diligence to discover the facts which were made the basis of the motion, "due diligence required the movants to make their extraordinary motion for new trial promptly on discovery of the grounds." Crawley v. State, 151 Ga. 818 (1), 108 S. E. 238, 18 A. L. R. 368.

"A ground of a motion for new trial based on newly discovered evidence was incomplete where only one of the officers of the losing party, a corporation, made affidavit that he did not know of the relationship of the juror to the opposite party at the time of the trial; it not appearing that this officer was the only officer of the corporation present at the trial of the case, and it affirmatively appearing that there were other officers of the company. And this is true, although the officer who made the affidavit testified that the other officers of the corporation did not know of the disqualification of the juror." Inter-Southern Life Ins. Co. v. McQuarie, 148 Ga. 233 (2), 96 S. E. 424. Furthermore, in the particular case, the affidavit of the officer of the corporation movant, which was dated April 10, 1922, in merely stating upon the question of time that the relationship of the juror to the stockholder of the plaintiff bank was unknown to this movant "until a short time ago." did not demand a finding that the relationship was not known at a time prior to the overruling of the first motion on May 31, 1921; the verdict having been rendered on October 19, 1920.

"A general statement that all possible diligence was used may need reduction to particular acts." Patterson v. Collier, 77 Ga. 292 (3), 3 S. E. 119. And see Evans v. Grier, 29 Ga. App. 426 (3), 115 S. E. 921.

In the absence of a showing demanding the conclusion both that the movants exercised proper diligence in discovering the relationship of the juror to the stockholder and that after discovering it they acted with sufficient promptness in instituting their extraordinary motion, the judgment overruling it must be affirmed.

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Emanuel County; R. N. Hardeman, Judge.

Action by the Farmers' Exchange Bank of Stillmore against W. R. Holder and another. Judgment for plaintiff, and defendants bring error. Affirmed.

F. H. Saffold, Alfred Herrington, Jr., and Felix C. Williams, all of Swainsboro, for plaintiffs in error.

A. S. Bradley, of Swainsboro, for defendant in error.

BELL, J. The Farmers' Exchange Bank of Stillmore instituted a suit to the January term, 1920, of Emanuel superior court, against W. R. Holder and the American Surety Company, and recovered a verdict on October 19, 1920. A motion for a new trial was made by the defendants on the same day, and was overruled on May 31, 1921. That judgment was affirmed by this court on December 14, 1921, and a motion for rehearing was denied on February 28, 1922. 28 Ga. App. 21, 110 S. E. 762. An extraordinary motion for a new trial was presented at the April term, 1922, based upon the ground that one of the jurors; who rendered the verdict against the movants was related within the prohibited degree to one of the stockholders of the plaintiff bank. This motion being overruled, the defendants again excepted, and the case is here for a review of the latter judgment.

The prohibited relationship is not disputed. The contentions between the parties turned upon the question of diligence. The plaintiffs in error contend that they exercised all proper diligence both in the discovery of the relationship and in the prosecution of their motion. The defendant in error contends that there is no showing that sufficient diligence was exercised in the discovery of the relationship, and also that it was discovered prior to the January term, 1922, of Emanuel superior court, and that the motion should have been made at that term. Plaintiffs in error insist in their brief that certain evidence which was offered by the defendant in error in its counter showing to the motion is without probative value, being hearsay, and in this opinion we will eliminate all of the evidence so criticised.

The defendant in error does not make any question that a motion of this character upon such ground would be maintainable in a civil case with a proper showing of diligence, and no decision is necessary upon that point, since we are of the opinion that the judgment of the court overruling the motion should be affirmed upon other grounds.

Assuming that all proper diligence was sufficiently shown in the evidence of the attorneys representing the movants, we will refer only to the two affidavits of the movant Holder, the one...