Teasley v. Pittman , 40 Ga. App. 22 ( 1929 )

Broyles, C. J.

This is an application for a mandamus to compel the judge to certify a bill of exceptions tendered him after the filing of an extraordinary motion for a new trial. The motion was filed after the overruling of a former (or ordinary) motion for a new trial, and was based upon alleged newly discovered evidence. The movant’s affidavit does not affirmatively show that there was no want of diligence upon his part to discover such evidence prior to his trial and prior to the overruling of his first motion for a new trial. Furthermore, the alleged newly discovered evidence is largely impeaching in its character; and the judge did not err in refusing to issue a rule nisi on the motion or thereafter in declining to certify the bill of exceptions tendered him. “Extraordinary motions for new trials, based on the ground of newly discovered evidence, are viewed by the courts with even less favor than original motions on such ground, and a stricter rule has been applied to tile former.” Norman v. Goode, 121 Ga. 449, 455 (49 S. E. 268). “The extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transaction of human affairs, as when a man has been convicted of murder and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where iliere has been some providential cause, and cases of like character.” Cox v. Hillyer, 65 Ga. 57 (2).

Decided June 11, 1929. W. E. Mann, L. T. Mann, for the applicant.

Mandamus nisi denied.

Luke and Bloodioorth, JJ., concur.