Huguley v. Holstein

35 Ga. 271

• Court: Supreme Court of Georgia
• Decided: December 15, 1866
• Status: Published

Opinion

"Walker, J.

[1.] Did the Court err in granting a new trial ? This Court-is less disposed to control the discretion of the Court below where a new trial ha3 been granted, than where it has been refused. In the latter case, the decision is final; in the former, the parties have an opportunity to be heard in the assertion of their rights.

[2.] It is a rule of equity pleadings that a defendant, when called on to discover what facts he may know in favor of complainant, must answer “ according- to the best and utmost of his knowledge, recollection, information and belief” 2 Dan. Ch. Pr. 246 and 256; Pitts vs. Hooper, 16 Ga. R., 445. The reason is, that if a party believes a fact against his interest, the Court and jury may believe it, too. We think the same reason applies in a case where a party is introduced as a witness by his adversary — especially in a case where his memory is so indistinct as in this case.

Besides, our common law proceeding to foreclose a mortgage is a substitute for a proceeding in Equity. Why should not the rules of proceeding in Equity apply? We think the Court, in granting a new trial, committed no such error as to make it our duty to reverse his decision, and we therefore affirm the judgment.