Roe v. Doe ex dem. Kalb , 37 Ga. 459 ( 1867 )

Warner, C. J.

The error assigned to the judgment of the Court below in this case is, in refusing to grant a new trial on the grounds spicefied in the motion therefor. There is no alleged error in the charge of the Court to the jury, but the motion for a new trial was made upon the gróund that the verdict,was contrary to the charge of the Court, contrary to the evidence, and for newly discovered evidence. The charge of the Court was based upon the evidence in the record; that evidence is conflicting upon the main points in the case. It was the exclusive province of the jury to judge of the evidence as well as the credibility of the witnesses. If the jury believed the witnesses sworn for the plaintiff, then there is sufficient evidence in the record to sustain the verdict. It has been the uniform rule of this Court, announced in a great number of cases, that when the law and the facts have been fairly submitted to the jury by the Court below, though the evidence may be conflicting, and there is sufficient evidence in the record to sustain the verdict, a new trial will not be granted. Craft vs. Jackson, 4 Geo. R., 360. Garland vs. Milling, 6 Geo. R., 310; Morris vs. Stokes, 27 Geo. R., 239. Scott vs. Newsom, Ibid., 125. Rawson vs. McJunkins, Ibid., 432.

As to the newly discovered evidence, the general rule is, that a new trial will not be granted on the ground of newly discovered evidence, where the evidence so discovered is merely cumulative." Coggin vs. Jones, 29 Geo. R., 257. The 3665th section of the Revised Code recognises this rule: the newly discovered evidence must relate to new and material facts, not merely cumulative in its character. What is to be considered cumulative evidence ? This question is very satisfactorily answered in the case of The People vs. The Superior Court of New York, 10 Wendell’s R., 285 : “ Evidence is cumulative, when it goes to the fact principally controverted on the former trial, and respecting which the party asking for a new trial produced testimony on the trial of the cause.” In this case, one of the facts principally controverted on the former trial was, whether the purchase money for the lot in dispute had been paid by Grubb before his death, to Cone, from whom he held a bond for title ? Upon that point, several witnesses were examined on the trial. The newly discovered evidence of Benjamin Kelly and Atkinson relates to the payment of the purchase money by Grubb to Cone, for the lot, and is therefore merely cumulative evidence upon that that point in the case.

The affidavit of David Kelly states what he saw one Ealph do, and the conversation he had with other parties; that he paid Mrs. Grubb ten dollars rent for one of the houses on the lot, etc. Taking his statement to be true, and conceding that it would be competent evidence on the trial, still it could not change the result of the verdict.

The defendant states that she can prove the payment of the purchase money by Wellborn, and knew she could do so before the trial. This might have been a good showing for a continuance of the cause, but is not a valid ground for a new trial. Motions for a new trial upon the ground of newly discovered evidence, are not, as a general rule, favored by the Courts. We have carefully examined this voluminous record, and we cannot find any legal ground upon which to base our judgment for a new trial in the case.

Let the judgment of the Court below be affirmed.