Moore v. Ewings

44 Ga. 354

• Court: Supreme Court of Georgia
• Decided: July 15, 1871
• Status: Published

Opinion

McCay, Judge.

1. It would, we think, be a decided infringement on the right of jury trial, to reverse this judgment, on the ground that the jury found contrary to the evidence. The most that can be contended for, is, that the weight of the evidence is against the verdict, since there is one witness who, if he is to be believed, states facts demanding just such a verdict. Prima facie, too, the case is with the plaintiff below, since the very giving of the note is an acknowledgment of a debt to the amount specified in the note. The burden of showing a mistake was upon the defendant at the trial. We have no acquaintance with the old gentleman whose testimony the counsel of the plaintiff in error gives such implicit credence to. We presume, however, the jury knew the witness. We are constrained to say, we do not agree with the plaintiff’s counsel, that the weight of testimony is against the verdict. We do not think the mistake is, by any means, clearly made out, and the witness upon whom he relies so implicitly, however good and upright a man he may. be, is evidently of frail memory, since he does not seem to know how many bags of cotton he had at the close of the war. The new testimony is not only cumulative, but we do not think it would materially help the case. It is still almost inexplicable, how this note should have been made, on the theory of the plaintiff in error. That there was a mistake in it, would, even with the new evidence, be only matter of inference, and that too, against the positive testimony of the payee of the note, who, if anybody, knows the facts, is supposed to be fully aware of what took place.

2. Newly discovered testimony is only a ground for a new trial, when, if it were heard by the jury, it must, with considerable certainty, control the verdict. We cannot see that such must have been the case. A verdict would have been sustainable under the evidence, even with this testimony. Our system of jurisprudence leaves the determination of questions of fact to the jury. The Court can only interfere when the verdict is strongly and decidedly against the weight of evidence, and even then the Code leaves much to the discretion of the Circuit Judge. We think the law right, and we would not change it if we could. Our experience is, that the jury is more often right than the Judge. The verdict of twelve men is, generally, correct, unless they be mistaken as to the law, and we repeat again, that we are indisposed to interfere with verdicts, especially if the Judge declines so to do.

Judgment affirmed.