Jackson v. Williams

101 S.E. 116, 149 Ga. 505, 1919 Ga. LEXIS 293

• Court: Supreme Court of Georgia
• Decided: November 14, 1919
• Docket: No. 1351
• Status: Published

Opinion

Hill, J.

Arthur Williams brought a petition against E. IT. Jackson, for injunction and other relief. On the trial a decree was rendered in favor of the plaintiff against the defendant, dated May 3, 1918. An extraordinary motion for new trial was presented after due notice, as provided by law, in term time, on February 8, 1919.. The sole ground of this motion was alleged newly discovered evidence material to and vitally affecting the case. It was also alleged that neither the movant nor her counsel knew, at the time of the trial, of the evidence, and that the same had been discovered but recently before the making of the extraordinary motion, and .that the evidence was not put in issue at the time of the trial. The defendant’s affidavit in support of the motion was to the effect that the allegations of fact in the motion were true, and that the same were not known to her at the time of the trial nor until disclosed to her shortly before her application or motion for new trial. On the hearing the court overruled the motion, and the movant excepted. Held:

1. The court did not err in overruling the motion for new trial, based on alleged extraordinary grounds. The movant failed to show that degree of diligence required under the law. Civil Code, § 6086; Patterson v. Collier, 77 Ga. 292 (2), 296 (3 S. E. 119).

2. A stricter rule is applied to extraordinary motions for new trial, based on newly discovered evidence, than to ordinary motions based on that ground. Norman v. Goode, 121 Ga. 449 (49 S. E. 268).

Judgment affirmed.

All the Justices concur, except Atlcinson, J., absent.

Equitable petition. Before Judge Harrell. Dougherty superior court. January 3, 1919.

R. J. Bacon and R. H. Ferrell, for plaintiff in error. Milner & Farkas, contra.