Kendrick v. Rountree

Wade, J.

1. Waiving the question whether the alleged newly discovered evidence was cumulative and impeaching in character, a counter-showing was made as to the character and credibility of the proposed witness, and the truth of the new testimony. Where a ground of a motion for a new trial is based on newly discovered evidence, and a counter-showing is made, so that a conflict arises as to the material facts upon which the ground is based, a reviewing court will not reverse the finding of the trial judge- on the issue thus made. “In determining the probability of a different result upon a second investigation, as well as whether the ends of justice require a different result, the trial judge must necessarily, in the first instance, be the trior of the credibility of the witnesses. . . In determining whether another trial shall be accorded to the litigant, who has already had his constitutional right, the court is charged with the rights of both parties alike, and should not set aside the finding already reached, and in which the prevailing party has a vested right, unless a different result is not only probable but proper.” Central of Georgia Railway Co. v. Clark, 15 Ga. App. 16, 22 (82 S. E. 600). See also Hayes v. State, 16 Ga. App. 334 (85 S. E. 253).

2. No error in the trial is complained of, there was evidence to support the verdict, and the trial judge did not err in overruling the motion for a new trial. Judgment affirmed.