Munro v. Moody & Fry

• Decision Date: 26 February 1887
• Citation: 2 S.E. 688,78 Ga. 127
• Parties: MUNRO, surviving Partner, v. MOODY and another.
• Court: Georgia Supreme Court

2 S.E. 688

78 Ga. 127

MUNRO, surviving Partner, v. MOODY and another.

Supreme Court of Georgia

February 26, 1887

Error from Decatur county.

Donaldson & Hawes, for plaintiff in error.

Maston O'Neal and O. G. Gurley, contra.

HALL, J.

Moody & Fry sued Munro, as surviving partner of Munro, Clary & Co. to recover the value of a raft of timber which the plaintiffs alleged belonged to them, and which they had sold to the defendants, to be paid for when it should be delivered at Apalachicola. The defendants also had other timber which they had themselves cut and prepared from the forest, and which they contended formed this raft. The issue submitted was as to the identity of this timber, and upon that point the evidence was conflicting. The jury found that it was the plaintiff's timber, and a motion was made for a new trial on various grounds, and was overruled; whereupon the defendant prosecuted this writ of error to reverse the judgment rendered on that motion.

1. There was sufficient evidence to sustain the finding, and the judge does not seem to have exercised his discretion improperly in refusing the motion on these grounds.

2. One Bussey was sworn as a witness for the plaintiff in the case and a motion was made for a new trial on the ground that Bussey was in the Georgia penitentiary at the time the raft in question was carried from Baconton to Bainbridge, and thence to Apalachicola, and therefore could not have been engaged as one of the hands who carried it down the river. They alleged that they discovered this fact after the trial was over, and introduced affidavits to show that Bussey was in prison during the time covered by this transaction. They allege that the verdict was procured by the "perjured evidence" of this witness, and for that reason should be set aside. But we think that, without his evidence, there was enough in the proof made by the other witnesses to sustain the finding. By the Code, § 3591, where a verdict has been obtained, it may be set aside, and held to be of no effect if it appears that "it was rendered in consequence of corrupt and willful perjury; but this can only be done where the person charged with the perjury shall have been thereof duly convicted; and where it shall appear to the court that the verdict could not have been obtained without the evidence of such perjured person." Code, § 3591; Richardson v. Roberts, 25 Ga. 671; Griffin v. Sketoe, 30 Ga. 300. Neither...