Norman v. Goode

• Decision Date: 12 December 1904
• Citation: 49 S.E. 268,121 Ga. 449
• Parties: NORMAN v. GOODE et al.
• Court: Georgia Supreme Court

49 S.E. 268

121 Ga. 449

NORMAN

v.GOODE et al.

Supreme Court of Georgia.

Dec. 12. 1904.

NEW TRIAL—NEWLY DISCOVERED EVIDENCE.

1. A party is bound, at his peril, to submit on the trial all competent evidence in his favor he has at hand. If he had knowledge of the fact, and the same could have been proved at the trial by evidence other than that newly discovered, a new trial will not be granted, unless the movant can satisfactorily explain why he did not attempt to use the evidence then at hand. A stricter rule is applied to an extraordinary motion for a new trial based on the ground of newly discovered evidence than to an ordinary motion on that ground.

Simmons, C. J., and Lamar, J., dissenting.

(Syllabus by the Court.)

Error from Superior Court Gwinnett County; R. B. Russell, Judge.

Action by C. C. Goode, executor, and others, against C. B. Norman. Judgment for plaintiffs. Defendant brings error. Affirmed.

E. Winn Born, for plaintiff In error.

Green, Tilson & McKinney, for defendants in error.

FISH, P. J. Amanda A. Sanders, formerly Clark, married Charles B. Norman, in Gwinnett county, this state, in 1883, and died there, Intestate, 1897, without a lineal descendant, and owning a certain house and lot in the town of Norcross. After her deathher sisters, M. A. Goode and Ora O. Clark, and her niece, Harriet E. C. Norton, claiming to be her heirs at law, brought an action against Norman to recover the house and lot Plaintiffs contended that Norman married Anna Hancock in Harris county, this state, in July, 1866, from whom he had never been divorced; that she was living at the time of his marriage to Mrs. Sanders, and therefore his marriage to Mrs. Sanders was void, and he was not her heir at law. Norman's contention was that he married Henrietta Prescott in Jacksonville, Fla., in February, 1865, was never divorced from her, that she was living when he married Anna Hancock, but died in 1S09, before his marriage to Mrs. Sanders, and therefore his marriage with Anna Hancock was void, his marriage to Mrs. Sanders was valid, and he was her sole heir at law. On the trial the Hancock marriage was proved by a certified copy of the license and certificate from the ordinary's office of Harris county. Norman submitted evidence to the effect that he and Henrietta Prescott lived together as husband and wife in Jacksonville, Fla., in the early part of 1865, and that the repute in her family and in the community where they lived was that they were husband and wife. Norman testified, in general terms, that he was married to her in Jacksonville, Fla., in February, 1865, but did not give any of the circumstances of the marriage, whether there was a license or ceremony, and, if so, who officiated, or whether there were any witnesses present. There was a verdict for the plaintiffs. Norman moved for a new trial, which was refused, and he excepted. This court (113 Ga. 121, 38 S. E. 317) affirmed the judgment of the trial court refusing a new trial, and held that "the presumption of law, founded on cohabitation and repute, that a marriage had taken place, will not prevail over proof of a subsequent marriage in fact by one of the parties with a third person;" and that, as the bare statement of Norman in his testimony that he was married to Henrietta Prescott was merely a conclusion of his from the facts surrounding his relations with her, which were not detailed by him, but which were referred to in the testimony of other witnesses who testified in his behalf, and as the testimony of these witnesses merely raised a presumption, from cohabitation and repute, of a marriage between Norman and Henrietta Prescott, when such presumptive marriage came in competition with his marriage in fact to Anna Hancock, shown to have taken place in strict conformity to law, the marriage in fact prevailed; that Anna Hancock was the lawful wife of Norman; that he was incapacitated to marry Mrs. Sanders, and was therefore not her heir at law, and that plaintiffs were entitled to recover the property in dispute. Subsequently Norman made a second, or extraordinary, motion for a new trial, on the ground of newly discovered evidence. The alleged newly discovered evi dence, which was set out in exhibits attached to the motion, consisted of a certified copy from the War Department at Washington, D. C, of a marriage license, dated at Jacksonville, Fla., February 23, 1865, and issued by Capt. J. W. Johnson, 3d U. S. C. T., and provost marshal of the district of Florida, reciting that martial law existed throughout such district, and authorizing any minister of the gospel to join N. B. Norman and Henrietta Prescott in marriage, and to make return to the office of such marshal; also a certified photographic copy from the War Department of a certificate, entered on the license, by John W. Swain, pastor of the Methodist Episcopal Church, at Jacksonville, Fla., that he had solemnized the rite of matrimony between N. B. Norman and Henrietta Prescott on February 23, 1865. There were also exhibits of certified copies from the War Department of orders showing that martial law was in operation in Florida in February, 1865, and that Capt. Johnson was then provost marshal of the district of Florida; also a certified copy from the War Department of an order by the Assistant Adjutant General, dated April 7, 1865, that "all military records, such as files of public letters, letter books, other books and other record books, muster rolls, &c. * * * required for future reference in the settlement of claims against the government and for other official purposes, " be forwarded by express to the Adjutant General's office by the officers of discontinued commands, if such records were not necessary for use at the department headquarters. There were also exhibits of ordination of J. S. Swain as a deacon and elder in the Methodist Episcopal Church, dated respectively 1836 and 1838, authorizing him to perform the ceremony of marriage, etc. Other exhibits were: The affidavit of J. W. Swain, who deposed that he was the son of J. S. Swain; that he found the certificates of ordination above referred to among his father's papers; that his father was pastor of the Methodist Episcopal Church in Jacksonville. Fla., in February, 1865, but was not an army chaplain, and that he died in 1875; that deponent knew his father's handwriting, and that from the certified photographic copy of the marriage certificate he knew that his father wrote and signed the original. A certified copy of Ordinance No. 3 of the Constitutional Convention of Florida, adopted November 4, 1865, declaring all marriages valid which had been solemnized in that state since January 10, 1865, by an ordained minister of the gospel, etc. A certified copy of article 15, § 6, of the Constitution of Florida, adopted February, 1868, validating "all proceedings, decisions or actions accomplished by civil or military officers in Florida acting under authority of the United States subsequent to January 10, 1865, and prior to the final restoration of the state to the government of the United States, " viz., July 31, 1868. Certified copies of acts of the Legisla-ture of Florida, passed in 1828 and 1829, directing ministers solemnizing marriages to make certificate thereof on the license, and transmit the same to the clerk of the county court of the county wherein the marriage took place, to be recorded and filed as evidence of the marriage. The affidavits of Norman and all the counsel who represented him on the trial were attached to the motion, from which it appeared that none of them knew that the marriage license and certificate were on file in the War Department until after the trial, and after the overruling of the original motion for a new trial. There were affidavits to the effect that before the trial the records of the county court of Duval county, in which Jacksonville, Fla., is situated, as well as the records of all the courts in that county, had been diligently searched, and no...