Bivins v. McDonald

B&otlbs, 0. J.,

concurring specially. I agree with my colleagues that the mandamus absolute should be denied, but not for the reasons given by them. It is well settled that where a motion for new trial, made at the term of the court at which the verdict complained of was rendered, has been overruled, and the decision affirmed by this court, “to authorize a second motion the extraordinary state of facts relied upon in support of the motion must have been unknown to the movant- and his counsel at the time of the first motion, and impossible to have been ascertained by the exercise of proper diligence for that purpose." (Italics ours.) Farmers Warehouse v. Boyd, 31 Ga. App. 104 (3) (119 S. E. 542).

In the extraordinary motion for a new trial in the instant ease it is not shown, nor even alleged, that the extraordinary state of facts relied upon in support of the motion could not have been discovered at the time of the first motion by the exercise of due diligence on the part of movant or his counsel. It follows that the trial judge, in refusing to entertain the motion, did not abuse the broad discretion vested in him in such a case. The fact that the judge gave another reason for his refusal to entertain the motion is immaterial. It has been ruled in repeated decisions of the Supreme Court and of this court that where the action of the trial judge is proper and legally justified for a reason other than that assigned by him, his judgment will be affirmed.

The judge, having properly refused to entertain the extraordinary motion for a new trial, did not err in declining to certify the bill of exceptions assigning error on such refusal.