Opinion
15266.
OCTOBER 4, 1945.
REHEARING DENIED NOVEMBER 19, 1945.
Divorce, etc.; extraordinary motion. Before Judge A. L. Etheridge. Fulton Superior Court. June 15, 1945.
Augustine Sams, for plaintiff in error.
Herbert Johnson and Swift Tyler, contra.
The only assignment of error in the bill of exceptions is upon a judgment denying an extraordinary motion for new trial. The motion was filed on June 9, 1945, by the husband, seeking a new trial in a divorce and alimony case in which the wife obtained a verdict for divorce and alimony on September 29, 1944. The motion quotes testimony of the wife given upon the trial, wherein she testified that she was not physically able to do any work, and contains affidavits showing that at the time she gave this testimony she was regularly employed at a salary of $85 per month. The motion is accompanied by all requisite supporting affidavits. It also points out that there was in the main case an issue as to the ownership of certain property, and that this issue was duly submitted in the charge to the jury, but that no finding on this issue was made. Held:
1. One of the questions which the trial judge, in passing upon the extraordinary motion for new trial based upon newly discovered evidence, is required to determine is whether or not the new evidence would likely produce a different result upon another trial. Young v. State, 56 Ga. 403; Brown v. State, 141 Ga. 783 ( 82 S.E. 238); Lakes v. Lakes, 171 Ga. 692 ( 156 S.E. 620); McCoy v. State, 193 Ga. 413 ( 18 S.E.2d 684). It can not be said that the judge erred in the instant case in holding that the newly discovered evidence, to the effect that the wife was working at the time she testified that she was physically unable to work, would likely produce a different result on another trial. The jury saw the wife on the witness stand and also heard evidence from a doctor and the husband showing her physical infirmities, and though she might have been working from necessity, this fact would not necessarily refute her testimony that she was physically unable to work.
2. The ground of the motion based upon the failure to adjudicate a material issue is not one for an extraordinary motion for new trial. The question here presented should have been raised by an ordinary motion for new trial. Judgment affirmed. All the Justices concur.