Stone v. Carter , 218 Ga. 92 ( 1962 )

218 Ga. 92 (1962) 126 S.E.2d 617

STONE et al.
v.
CARTER et al.

21680.

Supreme Court of Georgia.

Argued June 11, 1962. Decided June 25, 1962.

C. W. Health, for plaintiffs in error.

J. Laddie Boatright, Robt. B. Summer, R. E. Lawson, contra.

ALMAND, Justice.

On the trial of an equitable action a verdict was returned and a judgment rendered thereon against four named defendants. These defendants filed their motion for a new trial on the general grounds and one special ground. A new trial was granted solely on the special ground, and error is assigned on this order.

Under the provisions of Code § 6-1608 as amended by the act of 1959 (Ga. L. 1959, p. 353), where the grant of a new trial is solely upon any one or more special grounds, the same is reviewable by this court and shall be reversed if the trial judge committed harmful error in granting the motion for a new trial.

The sole special ground in the motion for a new trial was based on newly discovered evidence that one of the jurors on the trial of the case was related to the plaintiff in a degree which disqualified him from serving as a juror. The relationship was unknown to the defendants and their sole counsel until after verdict. A new trial was granted solely on this special ground.

Where a motion for a new trial is made upon the ground of newly discovered evidence it must appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence. Code § 70-205.

Where a motion for a new trial is filed by four defendants on the ground of newly discovered evidence and the motion is accompanied by the affidavits of only two of the defendants, the requirements of Code § 70-205 have not been met and such ground cannot be considered. Overby v. State, 183 Ga. 353 (3) (188 SE 520); Sutton v. Ward, 195 Ga. 314 (4) (24 SE2d 17).

The trial judge certified that the bill of exceptions specified all of the evidence material to a clear understanding of the errors complained of. The amended motion for a new trial is accompanied by affidavits of counsel for the defendants, two defendants, and a third party. The action being against four defendants, in which a verdict and judgment was returned against all of them and all four being joint movants in the motion for a new trial, such motion was incomplete where only two of the movants signed the affidavits, and it was error to grant a new trial on the special ground. See Speer v. State, 136 Ga. 67 (70 SE 797); Inter-Southern Life Ins. Co. v. McQuarie, 148 Ga. 233 (2) (96 SE 424).

Judgment reversed. All the Justices concur.