Davis & Co. v. Bagley

25 S.E. 20, 99 Ga. 142

• Court: Supreme Court of Georgia
• Decided: June 8, 1896
• Status: Published

Opinion

Lumpkin, J.

1. The mistake of a witness will not be cause for a- new trial, unless it appears that a correction of it would probably cause a different verdict to be rendered at another hearing. A fortiori, a new trial will not be granted when it does not affirmatively appear that the witness did make a mistake. See Brinson v. Faircloth, 82 Ga. 185, 187-8, and cases cited.

2. The evidence in the present case warranted the verdict, and it will not be set aside because, after the trial, the prevailing party, who had been sworn as a witness in his own behalf, admitted, as appears by his affidavit attached to 'the motion for a new trial, that he was “not certain” he had testified correctly as to a material matter; or, because another witness, upon refreshing his memory after the trial, made an affidavit, also attached to the motion, from which it was inferable only that he had made a mistake in his testimony as to the same matter; —'there being at the trial other evidence of a positive nature sustaining the version then given of this matter by these two affiants. The showing embraced in these affidavits was by no means such as to render it probable that, upon another trial, a different result would be reached. Judgment affirmed.

June 8, 1896. By two Justices. Argued at the last term.

Rule against sheriff. Before Judge Butt. Chattahoochee superior court. March term, 1895.

L. McLester and C. J. Thornton, for plaintiffs.