Wilson v. Shanhon

• Decision Date: 31 January 1850
• Docket Number: No. 23.,23.
• Court: Georgia Supreme Court
• Parties: Joseph Wilson, plaintiff in error. vs. Brandon & Shanhon, defendants.

8 Ga. 136

Joseph Wilson, plaintiff in error. vs. Brandon & Shanhon, defendants.

No. 23.

Supreme Court of the State of Georgia

JANUARY TERM, 1850.

Motion for new trial, in Talbot Superior Court. Decided by Judge Alexander, July, 1849.

Brandon & Shannon brought suit against Joseph Buchanan and Joseph Wilson, on a promissory note, to which Wilson pleaded that he was only surety, and was discharged by indulgence granted by plaintiffs to Buchanan, by contract, for a valuable consideration, paid to the plaintiffs. There was a verdict for plaintiffs below. Wilson moved for a new trial, on the ground that ho was surprised on the trial, by the evidence of one Helms, his own witness, who failed to prove that Wilson was surety, after having assured him (Wilson) that he would prove that fact; and that from this assurance of Helms, he had failed to summon two other witnesses, who would prove that fact.

This motion was accompanied by the affidavit of Wilson, that the facts stated in the rule were true; and also the affidavit of one Robinson, that he would have proved that Wilson was surety, if he had been subpoenaed as a witness.

The Court refused to grant a new trial, and this decision is assigned for error.

L. B. Smith, for plaintiff in error, cited—

Graham on New Trials, 209, 214, 216, 217, 218, 225. D'Agui1as vs. Tobin, 4 Eng. Com. Law Rep. 363. 17 Ib. 249. B. Hill, for defendant, cited—

Graham, 187, 220. 2 Taunt. 277. 2 Caines, 37, 132. 1 Term R. GO. 2 Johns. R. 425. Bank St. Marys vs. Mumford &Tyson, 6 Ga. Rep. 45.

By the Court. —Warner, J. delivering the opinion.

The defendant in the Court below, made a motion for a new trial in the cause, on the ground of mistake and surprise. To the action of the plaintiffs, the defendant pleaded that he was only security for Buchanan, and that after the note became due, the plaintiffs agreed with Buchanan, the principal debtor, to give him further lime for the payment of the note, for a valuable consideration.

On the trial, the defendant proved the truth of his plea, so far as the contract of indulgence was concerned, by Ivey, a witness sworn in his behalf. The defendant then offered Archibald Helms as a witness, to prove that he was only security to the note, but the witness failed to prove that fact, and a verdict was found for the plaintiffs, against the defendant. On the application for new trial, the defendant, Wilson, filed his affidavit, in which he states, that previous to the term of the Court at which the cause was tried, Helms, the witness, assured him that he would recognize the note sued on, and prove that defendant was security to the note; and relying on the promise and assurances of said witness, he failed to procure further evidence of that fact, which he could have done, and that ho will be able to do so by other witnesses, if allowed a new trial; that on the...