Sharp & Brown v. Loyless

Brown, C. J.

1. We have reviewed the decision of this case made by this Court at the last term, and are well satisfied of its correctness. (Ante, page 8.) The objections filed under oath at the first term of the Court to an award returned and entered upon the minutes, must show that the award is the result of accident or mistake, or of the fraud of some one, or all of the arbitrators, or the parties, or is otherwise illegal, and it must show how, or in what the illegality consists, or it is insufficient, and may be dismissed on demurrer, and the award ordered to stand as the judgment of the Court.

2. When such objections have been pleaded under oath at the first term of the Court, if it should appear at a subsequent term that they are insufficient, or imperfect, the party filing them may, upon application to the Court, amend them, so as to supply the deficiency. But if he is satisfied with the objections, as filed at the first term, and makes no application to amend, but chooses to go to trial upon them as originally made out, and they are held insufficient, or dismissed on demurrer in the Court below, and that judgment is affirmed in this Court, the matter in dispute is res adjudieata and the judgment is conclusive.

3. One of the grounds taken in this bill of review is, that the Honorable John T. Clarke, who acted as one of the arbitrators, was the Judge of the Superior Court, who presided at the term of the Court when the award was entered upon the minutes of the Court; and fit is objected that he was interested, as the award directed that he receive the sum of three hundred and fifty dollars for his services as arbitrator, to be paid jointly by both parties to the submission. As the payment was to be made by both parties to the litigation jointly, the interest of Judge Clarke as between the parties is not very apparent. If he was pecuniarily interested in the event of the suit, the Code says he cannot sit “without the consent of all the parties in interest.” Was such consent given ? His interest is distinctly charged in the bill, and the answer distinctly states, that all parties consented, that no objection was made. And this is corroborated by the fact that no such ground of objection appears upon the record, as having been made at the first term of the Court, or at any time till after the case had been heard in the Court below and had been brought hereby bill of exceptions and the judgment of the Court have been below affirmed in this Court, when for the first time it is made in the bill of review as a ground for new trial. We hold under this state of facts that the objection was waived on the trial, and that it cannot now be made.

4. The award of the arbitrators was returned to the Court at the November Term, 1867, and entered upon the minutes, and the Court adjourned till March, 1868. When the Court met in March, it was thought best by the Judge, on the first day of the adjourned term, to adjourn the Court till the next regular term, without transacting any business of much consequence. About the time the Judge had ordered the sheriff to adjourn the Court, Sharp and Brown appeared in Court, by their counsel, and asked that the Court would continue in session till they could have time to put their objections to the award in proper form and file them. The Judge gave a few minutes only, holding that they had already had sufficient time, and he ordered the Court adjourned. About the moment of the adjournment the objections, with which the complainants seem to have been satisfied, as they never made any motion to amend them, were filed. Indeed, we are told in the argument of this case, that the counsel considered them sufficient and went to trial upon them. The refusal of the Judge to keep the Court open and give the counsel further time to perfect his objections, is urged by the bill of review as a ground for a new trial in this case and several affidavits are filed giving reasons why the objections had not been put in proper shape, during the time that intervened between the November term of the Court and the March adjourned term. One principal reason is that the papers and books necessary to enable counsel to prepare the objections, were not in their possession, but were partly in the possession of the other party, and partly in the possession of certain corporate companies. But is this a sufficient excuse ? We think not. If the counsel had applied to the Judge in Chambers between the regular and the adjourned term, it would have been his duty to have passed an order, requiring the other party or the said corporate companies, to allow the counsel to have access to the books and papers, for the purpose of making up his objections, and if the order had been disobeyed, the Judge would have compelled obedience to it, or he would then have given more time to perfect the objections. The record does not show that the counsel ever applied to the opposite party to allow him to inspect the papers, or to the corporations for the use of their books, or took any steps whatever to get access to the papers. Taking into consideration the time between the regular and the adjourned terms of the Court, and the right to demand the use of the papers for the desired object, we cannot say that there was such diligence as entitles the complainants on this ground, to the interposition of the Court by bill of review after a final judgment.

5. The only remaining ground relied upon in the bill, which has any plausibility to sustain it is, the point made on the newly discovered, evidence. To entitle a party to a new trial on the ground of newly discovered evidence, he must show — 1. That the evidence has cometo his knowledge since the trial. 2. That it is not owing to any want of diligence on his part that it did not come to his knowledge sooner. 3. That it is so material that it would probably produce a different result if the new trial should be granted. 4, That it is not cumulative only — that is, it must relate to facts of which there was no evidence on the trial complained of. The affidavit of the witness himself must be produced or its absence accounted for. And new trial will not be granted if the only object of the evidence is to impeach the character of a witness. Berry vs. The State, 10 Ga., 511.

Now we do not think the case made by this bill comes up to this rule. It is not shown that these complainants used any diligence to discover the evidence upon which they now seek the new trial. Nor are we satisfied that it is so material as to change the result, if the new trial should be allowed. It is very nearly, if not entirely, sworn off by the answer, and, if it is not cumulative only, it would hardly have produced a different result, if it had been with the defendant’s answer before the arbitrators at the time the award was made. But a still stronger objection to it is, that no affidavits of the witnesses themselves are attached to the bill. The amendment was filed after the motion to dissolve the injunction had been made, and time was then asked, to get up affidavits to sustain it on the ground that the witness was not at home. But this was no compliance with the rule. The affidavits of the witnesses, stating what they would testify about the cotton, should have been attached to the bill or their absence should have been more satisfactorily accounted for. The amended answer did not state where the witness, Warren, was, only that he was spending the summer from home. It is not shown that he was beyond the reach of the complainants, or that any effort had been made by them to get his affidavit, before the amended bill was filed; nor is it stated how long since the facts alleged in the amended bill came to the knowledge of the complainants or their counsel. Indeed no excuse is pretended to be given why the affidavits of the witnesses, Wilburn and Weston, are not attached to the bill.

We are satisfied that the complainants are not entitled to a new hearing upon the grounds made by this bill, and that the subject matter in controversy in this case has been finally adjudicated. It is an established rule that a bill of review will not be sustained, when it does not make a case, which requires a reversal of the former decree, or would authorize a new trial. SO Georgia, 826. This' bill, whether technically a bill of review or a bill for a new trial, does neither.

Judgment affirmed.