Greer & Co. v. Raney , 1904 Ga. LEXIS 528 ( 1904 )

Lamar, J.

1. There was no evidence in conflict with that offered by the plaintiffs to establish the fact that they were the heirs or successors in title from Braddy, and it was not error for the court so to instruct the jury. Southern Railway Co. v. Chit-wood, 119 Ga. 29; Civil Code, § 4334

2. The plaintiffs made out a prima facie case, and unless it was met by some sufficient defense they were entitled to recover for the value of the timber cut. There is no assignment that the verdict was excessive, and no ruling of the court on this branch of the subject which requires, the grant of a new trial. The defendants’ answer gave no intimation of an intention to rely upon a title by prescription, nor was there any request for a charge on this subject. The evidence as to possession before November 29, 1887, was wholly insufficient to establish continuous, uninterrupted, and adverse possession under any of the parties through whom defendants claimed. The evidence as to the building of the house showed that it was constructed after the 1st of December, 1887, and less than seven years before the filing of the suit. The court did not err, therefore, in failing to charge on the subject of prescription. Civil Code, §§ 3586, 3589..

3 — 5. The newly discovered evidence as to possession having begun before November 29, 1887, did not require the grant of a new trial. If the failure to plead prescription was intentional, the defendants can not raise a new issue and offer evidence thereon after the verdict. If they intended to rely on prescription, there is no sufficient explanation as to the failure to make inquiry of their predecessors in title, or others by whom such adverse possession could be established. They had to prove public and continuous possession — a possession which in its nature was not secret but notorious, and there is no showing which explains why it could not have been procured by the exercise of the diligence required by law. Civil Code, §§ 5480, 5481. Motions for new ti;ial on the ground of newly discovered testimony are addressed to the sound discretion of the trial judge, but are not intended to serve the purpose of permitting additional evidence by new witnesses to the ' same fact; nor for cross-examination of those previously sworn (Hall v. State, 117 Ga. 263 (2)); nor, after a witness has once testified, to allow him to refresh his memory, and then as matter of course grant a new trial thereon. Archer v. Neidt, 55 Ga. 200 (2). See Newman v. Malsby, 108 Ga. 339; Southern Ry. Co. v. Pulliam, 108 Ga. 808. The case differs from Nays v. Westbrook, 96 Ga. 219; G. S. & F. B. Co. v. Zark, 108 Ga. 800, and also from Davis v. Bagley, 99 Ga. 142.

6. In view of the state of the record, and of the fact that the verdict for the plaintiff was demanded, we do not pass upon the motion to review Isom v. Knight, 113 Ga. 613; Baxley v. Baxley 117 Ga. 60. Whether Paulk’s deed, or any preceding deed in defendant’s chain, had been recorded or not was immaterial. , The possession prior to that period was not continuous. That subsequent thereto was for less than seven years before the suit.

Judgment affirmed.

All the Justices concur.