Pittsburg Plate Glass Co. v. Maril , 21 Ga. App. 682 ( 1918 )

Wade, C. J.

(After'stating the foregoing facts.) In the case .of Leathers v. Leathers, 138 Ga. 740 (76 S. E. 44), our Supreme Court said: “Where in a former suit between the same parties, and relating to the same subject-matter, a verdict and judgment were rendered against the defendant, whose motion for á new trial was overruled, and such judgment was affirmed by the Supreme Court, a petition subsequently brought by the defendant, to review and set aside the verdict and judgment, was properly dismissed on general demurrer, where it appeared that’the grounds for review were such as were known, or could by reasonable diligence have been discovered in time to incorporate them in the motion for new trial made in the former case.’-’ In the case of Frank v. State, 142 Ga. 741 (83 S. E. 645, L. R. A. 1915D, 817), division a of the second headnote is as follows: “Where a motion for a new trial is made by the defendant, with knowledge of the fact that the verdict was rendered in his absence, and such motion does not contain that fact as a ground for new trial, though it is recited therein, it is too late, after the motion for new trial has been denied and the judgment has been affirmed by this court, to make a motion to set aside the verdict on that ground.” In discussing this ruling the court said: “When, therefore, the defendant by motion for a new trial invoked from the court a ruling upon alleged errors that had been committed upon the trial, . . he will not be heard to say that the verdict was a nullity . , . after the motion for a new trial has been denied and the judgment denying it affirmed by this court. . . He had the right to invoke the ruling on that question on the motion for new trial, and, failing to do so, he can not now be heard to say that he will treat • the verdict as a nullity and move to have it set aside as such. It would be a reproach upon the court’s administration of the law to allow a defendant to make a motion for new trial, with a knowledge of his absence when the verdict against him was rendered, and have the grounds of the motion adjudicated by the court, and-then move to set the verdict, aside as void. . . It would be trifling with the court to allow one who had been convicted of crime, and who had made a motion for new trial ... to have the motion heard hy both the trial court and the Supreme Court, and, after a denial by both courts of the motion, to now. come in and by way of a motion to set aside the verdict include matters which were or ought to have been included in the motion for a new trial.” The United States Supreme Court (237 U. S. 309,'35 Sup. Ct. 582, 59 L. ed. 969), in discussing this feature of the decision in the Frank ease, said: “His contention that his lawful rights were infringed because he was not permitted to be present when the jury rendered its verdict, has been set aside, because it was waived by his failure to raise the objection in due season when fully cognizant of the facts” (italics ours). In the case of Lowther v. State, 18 Ga. App. 461 (89 S. E. 536), this court 'held: “The plaintiff in error can not, by motion in arrest of judgment, raise for the first time the point that the sitting of the court at which he was tried and convicted was not during a legal term of the court; it appearing that he made a motion for new trial. Lowther v. State, 16 Ga. App. 289 (85 S. E. 208): If it was not a legal term of the court, he could and ought to have raised the point in the motion for a new trial. He is precluded as to all points that he could have made at the time of the hearing and overruling of his motion for new trial” (italics ours).

It is manifest from these decisions that if the Pittsburg Plate Glass Company knew, or by the exercise of reasonable diligence could have known, all the facts or points raised in the motion to set aside when it made its motion for new trial, the demurrer objecting to the motion to set aside upon this ground was well taken, and the court did not err in dismissing the motion. This court will take judicial cognizance of its own records (Frank v. State, supra); and, upon an inspection of the motion for a new trial in the record brought to this court on the former writ of error in this case (Jones v. Maril, supra), we find the points therein raised to be practically the same as are now raised in the motion to set aside the judgment; or, to say the least of it, the questions raised' at this time could by, the exercise of reasonable diligence have been raised in the motion for new trial. In fact counsel for the plaintiff in error admits this to be true, but contends that, since the motion for a new trial filed jointly and severally by Jones and the Pittsburg Plate Glass Company was held by this court to be a nullity, it should not be now precluded from raising these questions. To assent to this contention would be to permit one to take advantage of his own laches. The plaintiff in error made a motion for a new trial, and by the exercise of due diligence could certainly have raised the identical questions which it now.seeks to urge. The objection to the motion to set aside, raised by this ground of the demurrer, being, as above suggested, amply sufficient to warrant the court’s dismissal of the motion to set aside, any discussion of the numerous other objections raised by the demurrer is unnecessary.

Judgment affirmed.

Jenkins and Luke, JJ., concur.