Reed Oil Co. v. Harrison , 26 Ga. App. 37 ( 1920 )

Broyles, C. J.

1. Cases contemplated by the statute in which extraordinary motions for new trials will lie should disclose transactions which do not ordinarily occur in human affairs. Cox v. Hillyer, 65 Ga. 57(2).

2. “ Ordinarily, cumulative and impeaching evidence is not ground for a new trial; but when such a motion is made on 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. If the newly discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced.” Civil Code (1910), § 6086. (Italics ours.)

3. Extraordinary motions for new trials based on the ground of newly discovered evidence are viewed by the courts with even less favor than ordinary motions on that ground, and a stricter rule is applied to the former. Norman v. Goode, 121 Ga. 449 (49 S. E. 208).

4. Applying these rulings to the facts of the instant ease, no merit whatever appears in the extraordinary motion for a new trial, based solely upon the ground of newly discovered evidence, and the court did not err in overruling it.

5. The extraordinary motion for a new trial is so palpably devoid of any merit whatsoever that it forces a conviction that the writ of error must have been prosecuted for the purpose of delay only, and the request of the defendant in error, that he be allowed ten per cent, damages for such delay, is granted.

Judgment on the main bill of exceptions affirmed, with damages; cross-bill dismissed.

Luke and Bloodworth, JJ., concur. Hi. M. Holloway,- A. L. Richards, for plaintiff. V. Q. Bryan, for defendant.