Luce v. Evans , 202 Ga. 48 ( 1947 )

Where an extraordinary motion for new trial is based upon alleged newly discovered evidence, and there is no attempt to comply with the rule of law applicable to such a motion as set forth in the Code, § 70-205, it is an abuse of discretion to grant such a motion.

(a) A contention by the movant that a decision by the Supreme Court was based upon matters not put in issue by the pleadings, evidence, or charge, where the record shows that each made such issue, will not excuse non-compliance by the movant with the above requirements of law.

No. 15686. FEBRUARY 4, 1947. REHEARING DENIED MARCH 20, 1947. The pleadings and the material portions of the evidence upon the trial of this case are set forth with sufficient fullness inEvans v. Luce (190 Ga. 403, 9 S.E.2d 646), on its previous appearance in this court. The present writ of error excepts to the grant of an extraordinary motion for new trial, and assigns error also upon the judgment overruling a motion to dismiss that extraordinary motion for new trial. After the remittitur from this court was filed in the trial court, but before it was made the judgment of that court, the plaintiff in error, who was the plaintiff in the trial court, filed an extraordinary motion for new trial, the substance of which was that this court based its decision upon the ground that the notes sued upon were never delivered to the endorsee plaintiff and her representative, and were not produced at the trial by the movant's administrator, and it was alleged that those points were not among the issues in the case at the trial. The motion then alleges that "it has just within the week" been discovered that the notes were delivered to an agent of the endorsee, and that the agent, C. L. Shepard, held the notes and then delivered them to W. H. Harris as attorney for the endorsee. It alleges that there has been no lack of diligence in discovering this evidence which it is desired to present to the court, for the reason that at no point in the pleadings or in the trial had the question of delivery been made. The motion further asserts that it was impossible for the movant to foresee that it would be necessary to submit evidence that the movant's attorney, who produced at the trial the notes used on, did so on behalf of and as the attorney for the plaintiff who sued on the notes and for her representative whom alone the said attorney represented. There was no affidavit attached to or accompanying the motion in proof of the alleged newly discovered evidence. The motion was verified by W. H. Harris as attorney for the movant "so far as within his own knowledge, and so far as based on information he believed the allegations in the motion to be true."

At the hearing the only evidence produced was an affidavit by A. J. Evans which in substance supported the allegations of the motion. No supporting affidavits were produced. The original petition alleged in paragraph 2 that the defendant was indebted to the plaintiff on the notes sued upon. Paragraph 2 of the original answer denied paragraph 2 of the petition in toto. Paragraph 5 of the original answer alleged that "This defendant denies that the petitioner is the holder of the notes sued upon." By an amendment dated December 4, 1936, the defendant alleged in paragraph 26 that the petitioner, Mrs. Willie Belle Evans, "was never the holder for value before maturity of the notes sued on in this case." In paragraph 28 of the same amendment it was alleged, "Defendant further says that the notes sued on in this case and the lease contract executed with the notes are still the property of A. J. Evans."

The charge of the court submitting the case to the jury contained this language: "One of the important issues is: To whom did these notes belong? Who had possession of these notes when this suit was filed?" A ground of a motion for new trial based upon newly discovered evidence, as provided in the Code, § 70-204, must meet fully the requirements of § 70-205. The latter section requires that such a ground must be supported by an affidavit of the movant and each of his counsel that they did not know of the newly discovered evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence; and if the newly discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced. There was no attempt here to comply with these statutory requirements. This rule must be applied more strictly in this case of an extraordinary motion for new trial. Norman v. Goode,121 Ga. 449, 455 (49 S.E. 268); Jackson v. Williams, 149 Ga. 505 (2) (101 S.E. 116); United States v. Hatcher, 185 Ga. 816 (196 S.E. 773); Brannon v. State, 190 Ga. 203 (9 S.E.2d 152). On application of the rule, the motion to dismiss the extraordinary motion should have been sustained.

But it is contended by the movant that the rule should not be applied here for the reason that, as contended in the extraordinary motion, the previous decision of this court was based upon questions not put in issue by the pleadings or evidence or the charge, and, hence, no amount of diligence could have enabled the movant to have produced upon the trial the alleged newly discovered evidence. The excerpts from the evidence and the charge in the foregoing statement of facts, together with the testimony of A. J. Evans set out in the opinion on the previous appearance of the case, wherein he testified that the endorsee never had possession of the notes, demonstrate the total absence of any foundation for this contention. Accordingly, the court erred in granting the motion.

Judgment reversed. All the Justices concur.