Carlisle v. Tidwell

By the Court. Benning, J. delivering the opinion. The new trial was moved for on three grounds. 1. That the verdict was contrary to evidence. 2d. Contrary to Law. 3d. That the plaintiff had discovered new evidence since the trial. There is plainly no foundation for the first and second grounds. [1.] As to the third, the plaintiff’s affidavit does not support it — does not say that the evidence which he wishes to use, has been discovered since the trial. What the affidavit says is, that he, the plaintiff, was not “ apprized of the existence and materiality” of that evidence, until after the rendition of the verdict. He does not say, that he did not know of the existence of the evidence. And it is to be presumed, that he does not mean so to say, for it is apparent from that evidence itself, that he knew of the existence of much of it. He knew, as appears by the exemplification from the Court in Alabama, of the existence of the fi. fa. in favor of Hudson against Thomas [37] Berry; for the exemplification shows the fi. fa. to-have been, transferred to him, himself, as long before as September, 1842, and his notice to Turner, the administrator of J. C. Berry, dated January, 1844, mentions that fi. fa. as one then belonging to him. So, likewise, he knew of the existence of the ¡seventeen fi. fas. in favor of Pace, for the use of Simmons against T. Berry and J. C. Berry, and of the existence of the fact that these fi. fas. received a part of the money for which the negroes of Thomas Berry were sold : for Driver’s interrogatories say, that such part of the money was credited on the fi. fas. which, with others, had been levied on the negroes; and ■his, the plaintiff’s same notice to Turner, the administrator, mentions these fi. fas. as being also held by him, which notice was in 1844. This bfing so, it ’is necessary so to construe the plaintiff’s affidavit, as to make it mean to say, that although he was aware of the existence of the evidence, he was not aware of its materiality. But such an affidavit is not sufficient to support a motion for a new trial, made on the ground of evidence, discovered after the trial. For it is the discovery of unknown evidence: not of the materiality of known evidence, which can serve as a cause for a new trial. The affidavit does not even say, that the plaintiff had forgotten the existence of the evidence. And, indeed, if this evidence on a new trial, should one be granted, should be laid before the Jury, it is far from clear that it- ought to bring about any change in the verdict — that it ought to do away with the effect of the absence of. this large note from the notice, which the plaintiff gave J. O. Berry’s administrator, Turner, of the demands which he held against him, as such administrator, and with the effect of his admissions made to Thomas Berry, fortified as each particular is, by such a lapse of time. So, therefore, this third ground is likewise insufficient to support the motion for a new trial. [38] Therefore, the judgment of the Court below ought to be affirmed.