Sumner v. Sumner, 11312.

• Decision Date: 11 November 1936
• Docket Number: No.11312.,11312.
• Citation: 183 Ga. 400,188 S.E. 515
• Parties: SUMNER. v. SUMNER.
• Court: Georgia Supreme Court

183 Ga. 400

188 S.E. 515

SUMNER.

v.SUMNER.

No.11312.

Supreme Court of Georgia.

Nov. 11, 1936.

Rehearing Denied Dec. 11, 1936.

Syllabus by the Court.

The court did not err in overruling a motion for new trial based upon the extraordinary ground that the defendant was insane at the time the suit was filed and also at the time the two verdicts were rendered and final judgment entered. These allegations were the basis of the motion on the part of the movant, but the respondent made a counter showing which contradicted and denied the statements of the movant in toto. In these circumstances the credibility of the witnesses and the weight to be attached to the testimony introduced was a matter addressed solely to the discretion of the trial court in the exercise of a sound legal discretion; and, since it appears that there was no abuse of discretion in this case, the judgment overruling the motion for new trial must be affirmed.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Action by I. L. Sumner against W. J. Sumner for divorce. Judgment was entered for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.

Affirmed.

Bussey & Fulcher, of Augusta, and Bry-son, Bowen & Pyle and W. E. Bowen, all of Greenville, S. C, for plaintiff in error.

Isaac L. Peebles, Jr., and Nathan Jolles, both of Augusta, and Hingson & Wofford, of Greenville, S. C, for defendant in error.

RUSSELL, Chief Justice.

This is a divorce case in which an extraordinary motion for new trial was made upon the ground of alleged newly discovered testimony. It appears from the record that the husband filed the action in the superior court of Richmond county on April 19, 1933, basing it upon the ground of desertion for more than three years. The action was brought to the May term, 1933; but, the sheriff having returned that the defendant was not to be found in Richmond county, the court granted an order for service by publication. At the next term, and after due service by publication, as found by the court, a jury returned a verdict in favor of the plaintiff. At the next succeeding term, on September 23, 1933, a second verdict was rendered grant ing a divorce, and judgment was entered accordingly. The real basis of the extraordinary motion for new trial is the contention of the defendant (the wife) that at the time of the institution of the divorce suit, and from February 24, 1932, until February 24, 1935, she was insane from the effect of dementia præcox. Upon issue raised on this point the court heard much evidence, and overruled the. motion for new trial. Several of the material affidavits the court need not to have considered at all, because the witnesses were not vouched for in accordance with the requirements of...