Opinion
31666.
DECIDED SEPTEMBER 3, 1947.
Complaint; from Swainsboro City Court — Judge Powell. April 26, 1947.
H. Alonzo Woods, for plaintiff in error. I. W. Rountree, contra.
1. Where a motion for a new trial has been overruled by the trial court, and the judgment has been 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.
( a) A stricter rule is applied to extraordinary motions for a new trial based on the ground of newly discovered evidence than to ordinary motions based on that ground.
( b) An extraordinary motion for a new trial is addressed to the sound discretion of the trial judge, and his discretion in overruling an extraordinary motion for a new trial will not be interferred with by this court unless manifestly abused.
( c) Under the record in this case, we can not say that there was such a manifest abuse of discretion on the part of the trial judge as would authorize this court to set aside his judgment overruling the extraordinary motion for a new trial, and therefore the judgment must be affirmed.
DECIDED SEPTEMBER 3, 1947.
Swainsboro Ice Fuel Company Inc. sued J. F. Gilpin in the City Court of Swainsboro upon an account, and recovered a judgment against the defendant for $261.35. The defendant's motion for a new trial was overruled, and, on appeal, said judgment was affirmed by this Court. Gilpin v. Swainsboro Ice Fuel Company Inc., 74 Ga. App. 813 ( 41 S.E.2d 540). Thereupon, the defendant made an extraordinary motion for a new trial based on the ground of newly discovered evidence.
In his answer the defendant denied that he was indebted to the plaintiff on the account sued upon, and in his testimony on the trial he did not deny that he received the goods constituting the account sued upon, but contended that this account had been consolidated with a partnership account owed by him and his son to the plaintiff, and settled by payment of $1275 to the plaintiff, which was paid by a check of the defendant. The plaintiff admitted receiving the check, but denied that it was in payment of the account sued on and contended that it was given in payment of the partnership account only. This partnership account was for material used in the construction of a house by the defendant for his son. The evidence was in direct conflict as to whether both accounts were included in and settled by the payment of $1275. The jury resolved the issue in favor of the plaintiff, and the judgment against the defendant was affirmed as above set out.
In itemizing the account sued on, the plaintiff, in his original petition, set out certain invoices showing the dates that the materials going to make up the account were furnished to the defendant, and the price of each item furnished. In his extraordinary motion for a new trial, the defendant contends that the goods shown on these invoices were not received by him; that the carpenter in charge of constructing the house, J. M. Echols, would testify that he was in charge of constructing said house and that he always marked all invoices received by him with an "O. K.;" that the defendant had found his duplicate copies of the invoices and that these were not marked with Echols' "O. K.," and the defendant did not receive such goods. The defendant set out that he did not find his copies of these invoices until after the trial, but it was not shown that the witness could not have checked the copies of the invoices attached to the original suit and testified from them. Echols, in his affidavit, testified that after looking over said bills, the dates, amounts, numbers, etc., he was able to familiarize himself with the same and thereby determine what he used, as well as what he did not use, and that all of this information is now easily disclosed from said bills, prices, numbers, etc., by discussing the same with Mr. Gilpin. Copies of these invoices were attached to the original suit and the originals were placed in evidence by the plaintiff on the trial, and it does not appear why the witness could not have testified from these copies or from the original invoices. While the defendant testified that he found his duplicate copies after a diligent search, it does not appear where he found them or why he could not have found them before the trial of the case.
Extraordinary motions for new trials, based upon the ground of newly discovered evidence, are viewed by the courts of this State with even less favor than original motions for new trials based on such ground, and a stricter rule has been applied to such motions. United States v. Hatcher, 185 Ga. 816, 826 ( 196 S.E. 773); Farmers Union Warehouse of Metter v. Boyd, 31 Ga. App. 104 ( 119 S.E. 542); Norman v. Goode, 121 Ga. 449 ( 49 S.E. 268); Jackson v. Williams, 149 Ga. 505 (2) ( 101 S.E. 116). An extraordinary motion for a new trial is addressed to the sound discretion of the trial judge, and "the discretion of the trial judge in overruling an extraordinary motion for a new trial will not, unless manifestly abused, be interferred with by this court." Towler v. State, 24 Ga. App. 362 ( 100 S.E. 787). Also see Henderson v. Maddox, 40 Ga. App. 91 ( 149 S.E. 59); Odum v. State, 24 Ga. App. 271 (c) ( 100 S.E. 655); McCoy v. State, 193 Ga. 413 (2) ( 18 S.E.2d 684); Brown v. State, 141 Ga. 783 (1) ( 82 S.E. 238); Young v. State, 56 Ga. 403, 405. It was held in Farmers Union Warehouse of Metter v. Boyd, supra: "Where a motion for a new trial, made at the term of the court at which the verdict complained of was rendered, was overruled, and the decision was 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." In this connection, also see Code, § 70-303; Malone v. Hopkins, 49 Ga. 221 (1). In the present case, it appears that the suit was defended by Alfred Herrington, as attorney at law for the defendant. This attorney prepared the defendant's answer to the action, prepared the motion for a new trial, and signed the bill of exceptions bringing the case to this court. The extraordinary motion for a new trial is signed by H. Alonzo Woods, as attorney for the defendant. While there is an affidavit of H. Alonzo Woods in the record to the effect that he did not know of the newly discovered evidence, and that it recently came to his attention after having been discovered by the defendant, there is no affidavit in the record that the defendant's counsel who prepared the first motion for a new trial did not know of the evidence at the time of the trial and at the time of the preparation of the original motion for a new trial.
Under the record as here presented, we can not say that there was such a manifest abuse of discretion on the part of the trial judge as would authorize this court to set aside his judgment overruling the extraordinary motion for a new trial, and therefore the judgment must be affirmed.
Judgment affirmed. Felton and Parker, JJ., concur.