Jackson Discount Co. v. Merck

Court of Appeals of Georgia

Jackson Discount Co. v. Merck

178 S.E. 208, 50 Ga. App. 381, 1935 Ga. App. LEXIS 327

CourtCourt of Appeals of Georgia

DecidedJanuary 12, 1935

Docket24162

StatusPublished

Cited by1 cases

This text of 178 S.E. 208 (Jackson Discount Co. v. Merck) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jackson Discount Co. v. Merck, 178 S.E. 208, 50 Ga. App. 381, 1935 Ga. App. LEXIS 327 (Ga. Ct. App. 1935).

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Opinion

Broyles, O. J.

1. Special ground 1 of tlie motion for a new trial, complaining of tlie admission of certain documentary evidence, is not complete and understandable within itself. It appears that the evidence was objected to on the ground that it was immaterial and prejudicial to the movant. This court, in order to ascertain whether the evidence was immaterial and prejudicial, would be obliged to refer to the pleadings or other portions of the record. Cœsar v. State, 22 Ga. App. 796 (97 S. E. 255) ; McGuire v. State, 29 Ga. App. 192 (114 S. E. 719). Furthermore, it is not stated in the ground how or why the evidence was prejudicial to the movant. Hunter v. State, 148 Ga. 566(2) (97 S. E. 523). The ground, therefore, raises no question for consideration.

•2. The excerpt from the charge, complained of in special ground 2 of the motion, when considered in the light of the entire charge and the facts of the case, discloses no reversible error.

3. The excerpt from the charge, set out in special ground 3 of the motion, does not express or intimate an opinion by the court on the facts of the ease.

4. Where a ground of a motion for a new trial is based on alleged newly discovered evidence, “it must appear by affidavit of the movant [italics ours] and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” Civil Code (1910), § 6086. In the instant case the ground based on alleged newly discovered evidence is fatally defective, in that no affidavit of the movant is set forth therein nor attached thereto.

5. The verdict was amply authorized by the evidence, and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.

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Broyles, O. J.

1. Special ground 1 of tlie motion for a new trial, complaining of tlie admission of certain documentary evidence, is not complete and understandable within itself. It appears that the evidence was objected to on the ground that it was immaterial and prejudicial to the movant. This court, in order to ascertain whether the evidence was immaterial and prejudicial, would be obliged to refer to the pleadings or other portions of the record. Cœsar v. State, 22 Ga. App. 796 (97 S. E. 255) ; McGuire v. State, 29 Ga. App. 192 (114 S. E. 719). Furthermore, it is not stated in the ground how or why the evidence was prejudicial to the movant. Hunter v. State, 148 Ga. 566(2) (97 S. E. 523). The ground, therefore, raises no question for consideration.

•2. The excerpt from the charge, complained of in special ground 2 of the motion, when considered in the light of the entire charge and the facts of the case, discloses no reversible error.

3. The excerpt from the charge, set out in special ground 3 of the motion, does not express or intimate an opinion by the court on the facts of the ease.

4. Where a ground of a motion for a new trial is based on alleged newly discovered evidence, “it must appear by affidavit of the movant [italics ours] and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” Civil Code (1910), § 6086. In the instant case the ground based on alleged newly discovered evidence is fatally defective, in that no affidavit of the movant is set forth therein nor attached thereto.

5. The verdict was amply authorized by the evidence, and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.

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178 S.E. 208, 50 Ga. App. 381, 1935 Ga. App. LEXIS 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-discount-co-v-merck-gactapp-1935.

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