Verdery v. Campbell , 203 Ga. 211 ( 1948 )

1. The ground of newly discovered evidence under review was fatally defective, in that there was no supporting affidavit by the movant's counsel.

2. The evidence, though conflicting, was sufficient to authorize the verdict in favor of the petitioner.

No. 15995. JANUARY 9, 1948. Nannette M. Campbell filed in Richmond Superior Court, against her brother Eugene F. Verdery, a petition seeking injunctive relief, and partition under the Code, § 85-1707, for the sale of various household furniture alleged to be owned in common by the parties under their father's will. In his answer the defendant denied that such property constituted any part of their father's estate, but formed a part of their mother's estate, and averred that the property passed absolutely to him under a bill of sale executed by her administrator with the will annexed. It was also averred in the answer that the petitioner had ousted the defendant from the possession of certain real property formerly owned in common by the parties. The defendant prayed that he recover a stated amount as rent, and that the petitioner be enjoined from interfering with his possession of the real property, he having purchased the petitioner's half interest in such realty.

On the trial, witnesses for the petitioner, including a servant who had been in the family for forty years, testified positively that the household furniture in litigation constituted a part of the father's estate. The defendant testified in part: His sister, the petitioner, said that the household furniture and different things belonged to their father. She had been living there and the witness thought that she knew. He himself thought from early childhood that the property belonged to his father. Later, however, he found that the household furniture was not included in either the "estate-tax return," fixing the inheritance tax against the estate of their father, or in the inventory and appraisement filed by their mother as executrix of their father's estate. His mother's will claimed the property, and when he found the estate-tax return and the inventory, he knew that the property did not belong to his father. The defendant introduced documentary evidence including the estate-tax return, the inventory, and the bill of sale executed to the defendant by the administrator with the will annexed of his mother's estate.

The jury found a verdict in favor of the petitioner, and that the defendant was not entitled to any rent. The defendant made a motion for a new trial, which was amended by the addition of two special grounds. The first special ground was based upon newly discovered evidence, and the second merely amplified the general grounds. The exception is to an order overruling the defendant's motion for new trial as amended. Other facts will be stated in the opinion. 1. The first special ground of the amended motion for new trial is based upon newly discovered evidence. While the movant stated under oath that he did not discover the contents of an affidavit made by Mrs. Helen J. Verdery of 222 Lexington Avenue, New York, N. Y., in time to use the same upon the trial of the case, he did not state that his counsel did not know of the existence of such evidence, and there was no supporting affidavit by the movant's counsel.

Applications for new trials on the ground of newly discovered evidence are addressed largely to the discretion of the trial judge, and this court will not reverse his decision refusing a new trial on such ground unless it is abused. Hall v. State,141 Ga. 7 (80 S.E. 307). It must also appear by affidavit of the movant and each of his counsel that they did not know, and could not by the exercise of ordinary diligence have discovered the existence of the new evidence. Smiley v. Smiley, 144 Ga. 546 (3) (87 S.E. 668); Harris v. State, 149 Ga. 724 (2) (102 S.E. 159);Overby v. State, 183 Ga. 353 (3) (188 S.E. 520); Hixson v. State, 194 Ga. 568 (4) (22 S.E.2d 121). It follows that the ground of newly discovered evidence under review was fatally defective, in that there was no supporting affidavit by movant's counsel as required by the Code, § 70-205.

2. There is no merit in the second special ground, wherein it is insisted that under the evidence it affirmatively appeared that the petitioner had deprived the movant of the joint occupancy of a described house by harassment and annoyance to such an extent that he and his wife were unable to live there. In relation to the joint occupancy of the house the petitioner testified in part: She had the north end of the house. The defendant took the other end and kept it locked. The witness did not do anything to get the defendant and his wife out of the house. They came and went as they pleased. The hall door to the lounge was left open day and night, and the defendant had a key to his part.

A controlling question on the trial of the case for partition was whether the household furniture constituted a part of the estate of the father of the petitioner and the defendant, or whether it formed a part of their mother's estate. The evidence on the question of which estate the household furniture constituted a part of, though conflicting, was sufficient to authorize the verdict in favor of partition as prayed for by the petitioner, and the trial court did not err in overruling the defendant's motion for new trial as amended.

Judgment affirmed. All the Justices concur, except Duckworth,P. J., absent on account of illness, and Wyatt, J., who took nopart in the consideration or decision of this case.