Trammell v. Shirley, (No. 19042.)

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtLUKE
Citation38 Ga.App. 710,145 S.E. 486
Decision Date14 November 1928
Docket Number(No. 19042.)
PartiesTRAMMELL et al. v. SHIRLEY.
38 Ga.App. 710

145 S.E. 486

TRAMMELL et al.
v.
SHIRLEY.

(No. 19042.)

Court of Appeals of Georgia,
Division No. 1.

Nov. 14, 1928.


(Syllabus by the Court.)

Error from Superior Court, Milton County; Jno. S. Wood, Judge.

Action by O. C. Shirley, for use, etc., against B. C. Trammell and others. Judgment for plaintiff, defendants' motion for new trial was overruled, and defendants bring error. Affirmed.

J. P. Brooke, of Alpharetta, for plaintiffs in error.

H. B. Moss, of Marietta, and G. B. Walker, of Alpharetta, for defendant in error.

LUKE, J. In this suit against the sureties on a constable's bond, the defense was non est factum. On the first trial of the case the court directed a verdict for the defendants, and this court, in Shirley v. Trammell et al., 34 Ga. App. 776, 131 S. E. 190, held that the evidence was in sharp conflict as to when the bond was signed by the sureties, and reversed the judgment of the trial court.

When the case was tried the second time,

[145 S.E. 487]

the jury found for the plaintiff, and the defendants filed a motion for a new trial, based on the general grounds and on the special ground that the court erred in not granting a new trial because of newly discovered evidence. Error is assigned on the judgment overruling this motion.

The defendants admitted in open court that they signed the bond, but insisted that they signed it "as of August 25, 1923." They further admitted that their principal on the bond defaulted between January 1, 1923, and August 25, 1923.

It is readily seen that the controlling question is whether or not the bond, at the time it was signed by the defendants, was dated January 1, 1923, or August 25, 1923. And, since the evidence was conflicting as to this crucial question, the jury's verdict resolving that conflict in favor of the defendant in error cannot be disturbed by this court for any reason assigned in the general grounds of the motion for a new trial.

2. The alleged newly discovered evidence referred to in the only special ground of the motion for a new trial is that of the son of the deceased principal on the bond. At the trial of the case, this witness testified for the plaintiffs in error and we would in any event feel hesitant in holding that the trial judge abused his discretion in overruling this ground of the motion. However, this ground is not for our consideration. In the first place, the affidavit of the two witnesses in support of the witness upon whose evidence a new trial was sought is defective in that it fails to show the associates and means of knowledge of such witness. Civil Code 1910, § 6086; Hart v. State, 36 Ga. App. 673 (2), 137 S. E. 798; Ivey v. State, 154 Ga. 63 (6), 113 S. E. 175; Carpenter v. State, 35 Ga. App. 349, 133 S. E. 350. In the second place, the affidavit of the defendants and their counsel as to diligence merely stated that they "did not know of the evidence * * * before the trial of the case therein stated, and that the same could not have been discovered by the exercise of ordinary diligence." This was a mere conclusion of the affiants, without basic facts from which the court could judge whether or not they could have discovered the evidence by the exercise of ordinary diligence; and the special ground also was defective for this reason. Hart v. State, 36 Ga. App. 673 (2), 137 S. E. 798; Taylor v. State, 132 Ga. 235 (3), 63 S. E. 1116; Tyre v. State, 35 Ga. App. 579, 134 S. E. 178.

This court is so often called on to pass upon motions for a new trial which contain grounds not in proper form for consideration that, for the convenience of members of the bar, the writer of the foregoing opinion is permitted by his associates, who concur in the judgment of affirmance, to incorporate herein a brief digest of decisions on defects of form in such motions, which was prepared by Judge A. W. Cozart, of the Columbus bar: Rule 1. (a) A ground of a motion for a new trial cannot be considered which contains an affirmative statement of fact material to the determination of the error assigned, unless it is unqualifiedly approved by the trial judge. Jordan v. State, 153 Ga. 167, 111 S. E. 417; Hayes v. Chapman, 147 Ga. 625, 95 S. E. 216.

(b) What are known as the "general grounds" do not have to be approved. Harris v. State, 120 Ga. 196, 47 S. E. 573. A ground based on newly discovered evidence need not be approved by the trial judge in the sense that the recital of facts in the affidavits offered in support of the ground are verified as true. Avery v. State, 11 Ga. App. 418, 75 S. E. 446.

(c) A ground of a motion for a new trial may be approved or verified by the trial judge in the bill of exceptions, or by a certificate made upon or attached to the motion, or in a certificate attached to each separate ground. National Fire Ins. Co. v. Van Giesen, 132 Ga. 671, 64 S. E. 655; Strickland v. State, 8 Ga. App. 421 (1), 69 S. E. 313.

(d) "The usual general certificate of a trial judge, approving as true all statements of fact contained in a special ground of a motion for a new trial, will be construed by this court [the Court of Appeals] as approving as true only such statements in the ground as are purely statements of fact, and not as so approving other allegations therein, which, although stated as facts, should properly be construed as mere conclusions of the movant, based upon facts set forth in the ground." Humphrey v. State, 24 Ga. App. 22, 99 S. E. 714; Rewis v. State, 27 Ga. App. 258, 108 S. E. 62.

(e) "Allowing" an amendment to a motion for a new trial is not an "approval" of grounds contained in the amendment. Wright v. State, 9 Ga. App. 235, 70 S. E. 968; Thornton v. Cordell, 8 Ga. App. 588, 70 S. E. 17; Pollard v. State, 125 Ga. 270, 54 S. E. 171, and cases cited.

(f) A ground of a motion for a new trial, though approved, is not valid, if it is contradicted by the record. Harris v. Vallee & Co., 29 Ga. App. 769 (9), 116 S. E. 642; James v. Cooledge, 129 Ga. 860, 60 S. E. 182; Georgian Co. v. Kinney, 19 Ga. App. 732 (3), 92 S. E. 31.

"While it is a well-settled rule that, where a conflict occurs between the recitals in a bill of exceptions and the record, the record controls (May v. State, 90 Ga. 794 (3), 17 S. E. 108; Rome Ry., etc., Co. v. King, 33 Ga. App. 385 [126 S. E. 294]), yet where a conflict occurs in the certified record itself, as where a judge certifies to have given a specific instruction, and the general charge as also certified and sent up does not contain the language of such excerpt in the instruction embracing the law on the same subject, the record will be reconciled by assuming that both charges were given. Grooms v. Grooms, 141 Ga. 478 (3), 81 S. E. 210." Bohannon v.

[145 S.E. 488]

Knapp, 33 Ga. App. 702, 704, 127 S. E. 808, 809.

(g) "Rulings upon the sufficiency of the pleadings are not proper subject-matter for a motion for a new trial." Coulson v. State, 13 Ga. App. 148 (2), 78 S. E. 1108, and citations; Tompkins v. American Land Co., 139 Ga. 377 (2), 77 S. E. 623, and citations; Wat-kins v. Mims, 35 Ga. App. 170, 171, 132 S. E. 241.

"A judgment upon the demurrer cannot be considered upon a motion for a new trial." Polhill v. State, 25 Ga. App, 383, 103 S. E. 469.

(h) Where the judge grants a nonsuit, "a motion for a new trial is not the proper mode of testing the correctness of such ruling." Buchanan v. James, 134 Ga. 475 (2, 3), 68 S. E. 72.

(i) "Attacks upon a decree furnish no ground of a motion for a new trial." Fowler v. Johnson, 151 Ga. 122 (c), 106 S. E. 90.

Rule 2. "A motion for a new trial is a means of seeking to have a retrial or re-examination, in the same court, of an issue of fact, or of some part or portion thereof, after decision by a jury, report of a referee, or a decision by the court thereon. It is an application for a retrial of the facts of the case." Buchanan v. James, 134 Ga. 475 (1), 68 S. E. 72; Herz v. Claflin Co., 101 Ga. 615 (5), 29 S. E. 33.

Rule 3. "Where a case has been tried by a jury and a verdict rendered therein, and the losing party desires to test the sufficiency of the evidence to support the verdict, a motion for a new trial is indispensable." Mackin v. Blalock, 133 Ga. 550 (4), 66 S. E. 265, 134 Am. St. Rep. 220; Jones Bros. v. Richards, 23 Ga. App. 560, 99 S. E. 11.

Rule 4. A ground of a motion for a new trial in regard to the refusal of a request to charge is not in proper form for consideration, where it is not alleged in the ground that the requested charge was pertinent and applicable to the facts of the case. Killabrew v. State, 26 Ga. App. 231 (2), 105 S. E. 711; Caswell v. State, 27 Ga. App. 76 (7), 107 S. E. 560; Savannah & C. Ry. v. Davis, 28 Ga. App. 654 (2), 112 S. E. 907; Monroe v. War-ten Cotton Co., 29 Ga. App. 358, 115 S. E. 279; Pulliam v. State, 30 Ga. App. 250 (3), 117 S. E. 822; Ward v. Gardner, 35 Ga. App. 569 (2), 134 S. E. 346; Coney v. State, 30 Ga. App. 132 (4), 117 S. E. 99.

Rule 5. A ground of a motion for a new trial, complaining of the refusal of a written request to charge, is not in proper form, where the ground contains no other statement as to the time of the request than that it was preferred, presented, or submitted to the court "in proper time, " or "in due time, " or where it alleges merely that the request was "properly submitted." These are mere conclusions of the plaintiff in error. Keese v. Mize, 27 Ga. App. 666 (4), 110 S. E. 417; Jones v. W. & A. R. R. Co., 23 Ga. App. 725 (3), 99 S. E. 388; Dixon v. Sol. Loeb Co., 31 Ga. App. 160 (12), 120 S. E. 31.

The ground must affirmatively show that the written request was presented to the trial judge "before the jury retired to consider their verdict."

Rule 6. The written request must be set out in the ground or attached thereto as a part thereof. Foskey v. State, 119 Ga. 72 (1), 45 S. E. 967.

Rule 7. It must appear that the written request was sound and accurate as a proposition of law. It should be perfect. Macon, D. & S. R. Co. v. Joyner, 129 Ga. 683, 59 S. E. 902.

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67 practice notes
  • Johnson v. State, No. 14673.
    • United States
    • Supreme Court of Georgia
    • November 9, 1943
    ...v. Farmers' Exch. Bank, 30 Ga.App. 400(6), 118 S.E. 467; Schaefer v. Schaefer, 46 Ga.App. 789, 790, 169 S.E. 256; Trammell v. Shirley, 38 Ga.App. 710, 727, 145 S.E. 486; Baggett v. State, 42 Ga.App. 389, 390, 156 S.E. 276; Allison v. Garber, 50 Ga.App. 333, 336, 178 S.E. 158. Especially is ......
  • Kapplin v. Seiden, Nos. 40534
    • United States
    • Georgia Court of Appeals
    • April 7, 1964
    ...Mayor etc. of Gainesville v. White, 27 Ga.App. 16(1), 107 S.E. 571; Allen v. State, 29 Ga.App. 213(2), 114 S.E. 583; Trammell v. Shirley, 38 Ga.App. 710, 718, 719, 145 S.E. Special ground 10 complains because the court excluded certain documentary evidence offered by the movant. This ground......
  • Martin v. State, No. 31075.
    • United States
    • United States Court of Appeals (Georgia)
    • March 6, 1946
    ...was, although known to the defendant's counsel, nothing is presented for consideration in this assignment of error. Trammel v. Shirley, 38 Ga.App. 710, 716 (Rule 17), 145 S.E. 486. 9. In another of the assignments of error the statements to which the defendant objected on the ground that th......
  • Brock v. Cato, No. 31504.
    • United States
    • Georgia Court of Appeals
    • February 28, 1947
    ...the inquiry cannot be expected to know what the witness would testify.' Bell v. Felt, 119 Ga. 498 (1), 46 S.E. 642." Trammell v. Shirley, 38 Ga.App. 710, 145 S.E. 486, 489. Aside from the recovery sought for damage to the automobile, the plaintiff sought damages for personal injuries and th......
  • Request a trial to view additional results
67 cases
  • Johnson v. State, No. 14673.
    • United States
    • Supreme Court of Georgia
    • November 9, 1943
    ...v. Farmers' Exch. Bank, 30 Ga.App. 400(6), 118 S.E. 467; Schaefer v. Schaefer, 46 Ga.App. 789, 790, 169 S.E. 256; Trammell v. Shirley, 38 Ga.App. 710, 727, 145 S.E. 486; Baggett v. State, 42 Ga.App. 389, 390, 156 S.E. 276; Allison v. Garber, 50 Ga.App. 333, 336, 178 S.E. 158. Especially is ......
  • Kapplin v. Seiden, Nos. 40534
    • United States
    • Georgia Court of Appeals
    • April 7, 1964
    ...Mayor etc. of Gainesville v. White, 27 Ga.App. 16(1), 107 S.E. 571; Allen v. State, 29 Ga.App. 213(2), 114 S.E. 583; Trammell v. Shirley, 38 Ga.App. 710, 718, 719, 145 S.E. Special ground 10 complains because the court excluded certain documentary evidence offered by the movant. This ground......
  • Martin v. State, No. 31075.
    • United States
    • United States Court of Appeals (Georgia)
    • March 6, 1946
    ...was, although known to the defendant's counsel, nothing is presented for consideration in this assignment of error. Trammel v. Shirley, 38 Ga.App. 710, 716 (Rule 17), 145 S.E. 486. 9. In another of the assignments of error the statements to which the defendant objected on the ground that th......
  • Brock v. Cato, No. 31504.
    • United States
    • Georgia Court of Appeals
    • February 28, 1947
    ...the inquiry cannot be expected to know what the witness would testify.' Bell v. Felt, 119 Ga. 498 (1), 46 S.E. 642." Trammell v. Shirley, 38 Ga.App. 710, 145 S.E. 486, 489. Aside from the recovery sought for damage to the automobile, the plaintiff sought damages for personal injuries and th......
  • Request a trial to view additional results

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