Lane v. Holliday , 27 Ga. 339 ( 1859 )

By the Court.

Benning, J.

delivering the opinion.

Was the Court below right, in overruling the motion for a mew trial ?

The second ground of the motion, was, newly discovered evidence. The Court below, we are told, considered the newly discovered evidence, “ merely cumulative in its character and therefore held the ground insufficient. In this, we differ with that Court. We think, that the evidence, ivas evidence that was “ not, merely cumulative in its character.” St was evidence that amounted to an estoppel by judgment, on Mrs. Holliday. In the former suit, (in Dooly,) she and her husband, Holliday, sued Wm. Collins, the administrator of ¡her first husband, James Collins, for this same land, or, for an account of it, and there was a recovery against her, and, on the ground, that her first husband, James Collins, had sold die land, in his lifethne. There was evidence on the trial of the present case, going to show, that Lane, the tenant in possession, claimed under one Goodman, and that this Goodman had bought the laud from the said first husband, James Collins. These things being so, the judgment would estop Mrs. Holliday, as against the administrator of James Collins, and all claiming under him, or, under William Collins, for he represented Jamos Collins. At all events, it may be assumed, that this judgment would estop Mrs. Holliday, as to her present suit, for it was uot denied in the argument, that it would estop her, the ground taken in the argument, being, that the judgment would be only cumulative evidence.

The precise point for us, therefore, is no more than this; would the judgment, assuming it to amount to an estoppel, be merely cumulative evidence. And we say, on that question, that we sec, in the evidence, nothing to which we can regard the judgment, as cumulative. There is, in the evidence, nothing even hinting at any former recovery — nothing to show, that the tenant had any right of any sort, by virtue of any judgment in any case in which Mrs. Holliday was a party.

We think, then, that this was a good ground. It is unnecessary to consider the other ground.

Judgment reversed.