On an issue of fact as to location of a land line the verdict for the plaintiff was authorized. Contention based on alleged newly discovered evidence did not require new trial.
No. 13276. SEPTEMBER 24, 1940.
There was involved in this case one simple issue of fact — the location of a land line between plaintiff and defendant. The plaintiff sought to have a true line determined, and to enjoin the defendant from erecting a fence on what plaintiff claimed was his land. There was evidence to support the contentions of both plaintiff and defendant. Plaintiff gave certain testimony in reference to an iron stake which he contended was located at the original corner, which would determine the line in accordance with a survey and plat made by a certain surveyor. In the single special ground of the motion for new trial, based on newly discovered evidence, it is contended by the defendant that before the trial neither he nor counsel knew or with proper diligence could have known that it would be claimed by the plaintiff that the iron stake was the key to determining the line, and that since the trial *Page 746
witnesses have been discovered who would disprove the contention. The judge in overruling the motion for new trial recited that at an interlocutory hearing (which had occurred some time in advance of the trial on the question of the restraining order, and at which the defendant and his counsel were present) the plaintiff had testified fully what he claimed in accordance with this survey and plat, and therefore that the defendant, in the exercise of due diligence, could have discovered the facts now proposed to be established. The court did not err in overruling the motion on the special ground of newly discovered evidence.Field v. Proctor, 151 Ga. 149 (106 S.E. 91); Heath v.Clark, 141 Ga. 65 (80 S.E. 288). There was ample evidence to support the verdict, and the refusal of a new trial was not error.