Delmas v. Margo

Bell, J. We are of the opinion that the court erred in overruling the motion of the plaintiffs for a new trial. We think that the affidavit of the attorney of the plaintiffs in support of the motion, showed sufficiently that the attorney, without any lack of caution on his part, was misled by the witness Stewart. It is true that the affidavit does not state quite as distinctly as could be desired, that the attorney of the plaintiffs had interrogated the witness previous to his examination in court, as to the precise extent of the acknowledgment of indebtedness made by the defendant at the time of the service of the attachment. But it is sufficiently shown we think, that the attorney was led to believe from his previous conversation with the witness, that the witness would testify that the defendant acknowledged himself indebted to the plaintiffs to the extent of their demand, as set forth in their petition and affidavit. It is well settléd that when a party’s own witness testified in such manner as to surprise the party who calls him, after due caution has been used by the party who calls the witness, a new trial will be granted. If, for example, a witness assures a party that he will testify to an important fact in the case, and fails upon examination in court, to do so; or when a witness has sworn to an important fact on a former trial, and upon a new trial being granted, swears differently, in these cases a new trial will be granted. For it is said that “ witnesses sometimes when interrogated in private, wholly mistake, and at other times greatly exaggerate their knowledge of the facts in dispute, so that confidence is placed in them only to be betrayed when they come to testify under oath in court»” (Graham & Waterman, on New Trials, vol. 3, p. 953.) In the case of Wilson v. Brandon, 8 Ga. Rep., 138, the judge who delivered the opinion of the court said, “ Applications of this sort, for new trials, ought to be closely scrutinized so as to guard against the abuse of a rule intended for the advancement of justice; but where there has been, as in this case, a blameless mistake and an injury to the party resulting from such mistake, a new trial, in our opinion, ought to be granted.” [4] In all cases of this kind it must, of course, rest within the discretion of the court to grant the new trial or not.: But where a party shows reasonable care and diligence to provide himself with testimony to make out his case, and uses the ordinary caution of a prudent attorney in informing himself of the facts to which the witnesses will depose, and is then disappointed by the testimony of his witnesses, so that an injury will result, which may be remedied by another trial, the new trial will be granted. Eor error in refusing to grant the new trial asked for by the plaintiffs, the judgment of the court below in this cause is reversed, and the cause remanded that a new trial may be had. Reversed and remanded.