Where it is sought to rely on a law of another State which is different from what it would be under the law of this State, the law of such State must be put in evidence. Champion v. Wilson Co., 64 Ga. 184 (1); Chattanooga, Rome c. R. Co. v. Jackson, 86 Ga. 676 (3) ( 13 S.E. 109); Craven v. Bates, Kingsberry Co., 96 Ga. 78 ( 23 S.E. 202); Norman v. Goode, 113 Ga. 121 (3) ( 38 S.E. 317); Southern Express Co. v. Hanaw, 134 Ga. 445 (7) ( 67 S.E. 944). While an exception to the general rule above stated is made in cases involving the validity of extradition proceedings ( Barranger v. Baum, 103 Ga. 465 (7), 30 S.E. 524; Denny v. Foster, 204 Ga. 872, 52 S.E.2d 596), we know of no such exception as to establishing the divorce laws of other States.
This evidence cannot be newly discovered, certainly insofar as the defendant is concerned, and there is no affidavit by the defendant in the record that he did not know of the evidence at the time of the trial. See, in this connection, Norman v. Goode, 121 Ga. 449 ( 49 S.E. 268). 5. The fourth special ground of the motion for new trial (numbered 7) contends that the State failed to prove venue.
As far back as Berry v. State, 10 Ga. 511 (14), this court has required newly discovered evidence to have been acquired after rendition of the verdict. See also Clark v. Carter, 12 Ga. 500 (3); O'Barr v. Alexander, 37 Ga. 195 (7); Colquitt v. Smith, 72 Ga. 515 (2); Norman v. Goode, 121 Ga. 449, 453 ( 49 S.E. 268); Harris v. State, 188 Ga. 745 (2) ( 4 S.E.2d 651). In Moore v. State, 202 Ga. 357 (1) ( 43 S.E.2d 251), it was said: "This court in Widincamp v. State, 135 Ga. 323 ( 69 S.E. 539), has construed the first sentence of the statute to mean that, `When newly discovered evidence is relied on as a ground for new trial, it should appear that the defendant and his counsel were ignorant of it until after the trial.'"
3. A party is bound, at his peril, to submit on the trial all competent evidence in his favor, and if he has knowledge of a fact at the trial, and it could have been proved then by evidence other than that which is claimed to be newly available since the trial, a new trial will not be granted because of such newly available evidence, where the movant makes no explanation of his failure to use or attempt to use the evidence at hand. Norman v. Goode, 121 Ga. 449 ( 49 S.E. 268); Goodman v. State, 122 Ga. 111 (5) ( 49 S.E. 922). See also Burgess v. State, 93 Ga. 304 (3) ( 20 S.E. 331).
" Whereupon it was ruled: "In order to take a case out of our own law, there must be evidence before the court that tried the case of the law of the other state, and the record must show its introduction in evidence." For other rulings to the same effect, see Craven v. Bates, 96 Ga. 78 ( 23 S.E. 202); Norman v. Goode, 113 Ga. 121 (3) ( 38 S.E. 317); Southern Express Co. v. Hanaw, 134 Ga. 445 (7) ( 67 S.E. 944); Trustees of Jesse Parker Williams Hospital v. Nisbet, 189 Ga. 807 (1) ( 7 S.E.2d 737); Alropa Corp. v. Pomerance, 190 Ga. 1 (1a) ( 8 S.E.2d 62); Wood v. Wood, 200 Ga. 796 (1), 798 ( 38 S.E.2d 545). See also Code, §§ 38-112, 38-622, 38-627.
This rule must be applied more strictly in this case of an extraordinary motion for new trial. Norman v. Goode, 121 Ga. 449, 455 ( 49 S.E. 268); Jackson v. Williams, 149 Ga. 505 (2) ( 101 S.E. 116); United States v. Hatcher, 185 Ga. 816 ( 196 S.E. 773); Brannon v. State, 190 Ga. 203 ( 9 S.E.2d 152). On application of the rule, the motion to dismiss the extraordinary motion should have been sustained. But it is contended by the movant that the rule should not be applied here for the reason that, as contended in the extraordinary motion, the previous decision of this court was based upon questions not put in issue by the pleadings or evidence or the charge, and, hence, no amount of diligence could have enabled the movant to have produced upon the trial the alleged newly discovered evidence.
104 S.W. 855; Taylor v. Sweet (La.) 22 Am. Dec. 156; Kelly's Heirs v. McGuire, 15 Ark. 555; 8 Enc. of Ev. 165; In re Robb's Estate, 37 S.C. 19; In re Estate of Pickens, 163 Pa. 14. Blanton Andrews and R. T. Jones, for appellees. — Writ of error was the required method for bringing cause up for review and the appeal should be dismissed: Behn Mayer Co. v. Campbell (U.S.) 51 L.Ed. 857; U.S. ex rel. v. Fidelity, etc., Co., 147 Fed. 228; Page v. Ralph, 55 Ark. 52; In re Crutchfield (Ind. T.) 64 S.W. 545; Ormsby v. Webb (U.S.) 33 L.Ed. 805; 2 Cyc. 1081. On conclusiveness of master's report: Kimberly v. Arms, 129 U.S. 512; Shipman v. Fletcher (Va.) 22 S.E. 458; Ennesser v. Hudek (Ill.) 48 N.E. 673. On proof of marriage by cohabitation and repute: Stevens v. Stevens (N.J.) 38 A. 460; White v. White, 82 Cal. 427; Blackburn v. Crawford, 3 Wall. 175; Jones v. Jones, 28 Ark. 19; Clayton v. Wardell, 4 N.Y. 230; In re Wallace's Estate (N.J.) 25 A. 260; Chamberlain v. Chamberlain, 71 N.Y. 423; Norman v. Goode, 113 Ga. 121; Eldred v. Eldred (Va.) 34 S.E. 477. KANE, C. J.
[Cit.]" Norman v. Goode, 121 Ga. 449, 453 ( 49 S.E. 268) (1904). A defendant is not entitled to go to trial hoping to convince the jury by relying on a particular trial strategy and when that strategy fails attempt to obtain a new trial by proffering evidence which he knew or which, although newly available, could have been discovered earlier by exercise of due diligence.
[Cit.]" Norman v. Goode, 121 Ga. 449, 453 ( 49 S.E. 268) (1904). In his affidavit Wiggins does not say that after the verdict he discovered from the contract or subsequent conversations with Kestenberg that he was in error at the time of the trial — he merely explains his prior testimony.
While the statement in the divorce action that they were married on a day certain is sufficient to establish a marriage where there is no conflict of marriages, it is here, where there is a conflict of marriages, and there is no evidence to show the circumstances under which such common law marriage took place, who was present, what was the character of the ceremony, who officiated, etc., not evidence that they were married according to any formality to each other and the admitted marriage will not prevail over the ceremonial marriage between Catherine Edwards and William Edwards. See Belle Isle v. Belle Isle, 47 Ga. App. 168, 175 (3) ( 170 S.E. 211). Nor would the presumption of law, founded on cohabitation and repute, that a marriage had taken place prevail over proof of a subsequent ceremonial marriage. Norman v. Goode, 113 Ga. 121 ( 38 S.E. 317); Jenkins v. Jenkins, 83 Ga. 283 ( 9 S.E. 541, 20 ASR 316). The trial judge therefore erred in holding under the proof submitted that the admission of marriage in the divorce action filed by Leroy Seals was sufficient to prevail over the subsequent ceremonial marriage between Catherine Edwards and the deceased William Edwards.