Jones v. Robson

By the Court.

Stephens, J.,

delivering the opinion.

A bill of review, in order to be sustained, ought to make a case for reversing the former decree, and this bill does not make such a case. • The decree which is sought to be reversed, was founded upon an alleged contract between Mrs. Jones and Mr. Robson. We have not before us, in the present case, the proof in support of that contract, but Judge Lumpkin, in his written opinion in the former case, says, “ there is a superabundance of evidence to prove this contract, and of his (Robson’s) distinct and oft-repeated recognition of it.” See 27 Ga, Rep., 272. This bill of review rests upon an assault on that proof, but it touches only two points of the “superabundance” which existed. When I speak of the extent of the attack, I mean the attack as supported by affidavits, for it is not entitled to consideration further than it is so supported. Round assertions, that no such contract ever was made, go for nothing, without pointing out the sources from which such proof is to come as would authorize the reversal of the former decree. The first point made by the bill of review, as supported by affidavits, is upon Mrs. Dudley, whose testimony was a part of that “superabundance” of proof on which the former decree was obtained. The case which it makes on her testimony is at most but one of suspicion. It may be, as stated by the commissioners who took her testimony, that she answered from a manuscript which she refused to let them see; and yet the manuscript may have been prepared by herself or by some one else under her direction, with a view not to falsehood, but to deliberation and accuracy. The further attempt to show that she was an incompetent witness on account of interest, is a failure. Leonard, in his affidavit, states that Mrs. Jones said to him, after she had got her decree, that she had consented to settle a portion of the recovery upon Mrs. Dudley, who was her daughter, but he does not state that she said this “ consent” was given before Mrs. Dudley gave her testimony; and the “consent” utterly fails to come up to the standard of a contract conferring a legal interest. The other point made by the bill of review is upon some sayings of Mrs. Jones, as reported by Mrs. Owens after a lapse of seventeen years. In the first place, Mrs. Jones may have said what was not true; but in the second place, it is very uncertain what she did say. If she said he had given up all to the creditors of Jones, as Mrs. Owens reports her, her saying was inconsistent with the contract on which the former decree in her favor was based; but if she said she had given up all to Robson to protect it from the creditors of Jones, her saying was in perfect conformity with the contract, and is strongly corroborative of it. Now, it is very uncertain which of these things she said, or whether she said either; and the doubt does not involve the slightest reflection upon Mrs. Owens, who reports the conversation, in which she had no personal interest, after so great a lapse of time. She may have reported it faithfully according to her memory, but her memory, under the circumstances, is not worth much. The bill, so far from making a case for reversing the former decree, does not even make a case for a new trial; for the point which it makes on Mrs. Dudley is the mere impeachment of a witness, and the point on the sayings of Mrs. Jones only brings up cumulative evidence, and neither of them is a good ground for a new trial. We are well satisfied that this bill ought to have been dismissed.

Judgment reversed.