Mckinney v. Darby

• Decision Date: 05 December 1939
• Docket Number: No. 27686.,27686.
• Citation: 6 S.E.2d 378
• Parties: McKINNEY et al. v. DARBY.
• Court: Georgia Court of Appeals

6 S.E.2d 378

McKINNEY et al.

v.DARBY.

No. 27686.

Court of Appeals of Georgia,

Division No. 2.

Dec. 5, 1939.

Rehearing Denied Dec. 18, 1939.

Syllabus by the Court.

The denial of an extraordinary motion for a new trial is res judicata and conclusive as to the grounds thereof, and bars another extraordinary motion for new trial predicated upon the same grounds. A judgment overruling an extraordinary motion for new trial, in which one of the grounds was that a party to the case had sought to corrupt a juror, where the ground was supported only by the affidavit of the juror himself, is res judicata on the hearing of a subsequent extraordinary motion based solely upon the same ground which is supported by an affidavit of a person in addition to the affidavit of the juror himself.

Error from Superior Court, Cherokee County; J. H. Hawkins, Judge.

Action by James Darby, by his father T. W. Darby, as next friend, against J. F. McKinney and others, for injuries sustained through alleged negligence of an employee of defendant in operation of an automobile. The jury returned a verdict for the plaintiff. To review a judgment sustaining motion to dismiss an extraordinary motion for new trial and dismissing the motion, defendants bring error.

Affirmed.

G. Eugene Ivey and Irving S. Nathan, both of Atlanta, and Howell Brooke, of Canton, for plaintiffs in error.

John S. Wood, of Canton, for defendant in error.

STEPHENS, Presiding Judge.

James Darby by his father, T. W. Darby, as next friend, filed suit for damages against J. F. McKinney Company, a partnership composed of J. F. McKinney, R. M. Thompson and Howard McKinney, on account of personal injuries sustained by the alleged negligence of an employee of the defendants in the operation of their automobile. The jury returned a verdict for the plaintiff. The defendants moved for a new trial, which was overruled. To this judgment they excepted. This court, on October 30, 1937, affirmed that judgment. McKinney v. Darby, 56 Ga.App. 621, 193 S.E. 594.

Afterwards, on March 3, 1938, the defendants filed an extraordinary motion for a new trial on the grounds, that, before the trial, T. W. Darby, in a conversation with Carter L. McGhee whose name was on the jury list for the term of court at which the case was to be tried, stated to McGhee that he (Darby) wanted McGhee to do Darby some good in the event Darby "used" McGhee on the trial of the case, for which favor McGhee would not lose anything, "thereby impliedly offering remuneration, " that McGhee was one of the 12 jurors who "served on the trial, " and that the plaintiff, together with his father, before the first trial of the case, called on one of the jurors who later served on the jury at that trial which resulted in a mistrial and displayed to him for examination the injuries received in the accident out of which the litigation arose. The affidavits of these two jurors, reciting the above facts, were attached to the motion, together with the necessary affidavits as to the reputation of these two jurors for truth and veracity. The motion contained the necessary allegations as to diligence of the defendants and their counsel. This motionwas amended by an allegation that the grand jury had indicted T. W. Darby for his action in approaching the jurors as alleged in the original motion. The court overruled the motion on the ground that it was based solely on the affidavits of a juror alleged to have been approached and that a juror could not impeach his verdict. The defendants excepted, and this court affirmed that judgment. McKinney v. Darby, 58 Ga.App. 725, 199 S.E. 649.

Thereafter, on January 27, 1939, the defendants made a second extraordinary motion for new trial on the ground that T. W. Darby approached McGhee whose name was on the jury list at the term of court at which this case was tried, and had a conversation with McGhee, and stated that if McGhee would give him (Darby) a fair deal and do him right and would not make any difference between the plaintiff and the defendants that he would always be a good friend of McGhee, and that when Darby and McGhee finished their conversation they shook hands. There was attached to this motion, in addition to the affidavit of the juror that he served on the jury during the case, affidavits supporting the alleged ground of the motion, together with affidavits of one of the parties defendant and their attorneys as to diligence, etc. There was attached the affidavit of Clarence Hensley to the effect that he was riding in an automobile with T. W. Darby and affiant's father, and as the automobile approached the store and home of McGhee it was remarked that there is where McGhee lives and he is on the jury next week, that Darby said that he had better stop and see McGhee about this case, that they then drove up to McGhee's store, and Darby got out and he and McGhee talked within a few feet of affiant and his father, that Darby asked McGhee if he was on the jury, and McGhee said that he was, that Darby told McGhee that he had a case coming up next week against McKinney, and wanted to know of McGhee, if he was taken on the jury, would he give him a fair deal and do him right, and Darby told McGhee that if McGhee would not make...