Slater v. Manes

Bleckley, Judge. 1. As to the grounds of new trial pronounced here insufficient on the former writ of error, they are res adjudieata. No second trial has been had in the court below, and these grounds come back to us with no new action or new light upon them. 2. It may be questioned whether the motion for new trial was amendable by adding, at- that stage, the ground of newly discovered evidence: Code, section 3716. Perhaps it was; but if so, the new hearing ought to have been confined to that ground alone, as if it were a separate extraordinary motion: Section 3721. 3. And that ground we hold insufficient, on the showing contained in the record. The new facts were not of a concealed or obscure nature, and they were discovered so soon after their absence had been remarked by this court that there is a strong probability that full diligence in searching for them would have met an earlier reward. The suit was by members of the Slater family, and the possession said to have been recently discovered was by other members of it. In so far as that possession related to the question of the plaintiffs’ title, it should have been inquired into before the suit was brought — certainly before it was tried. But the record discloses no inquiry earlier than-the loss of the case on the former writ of error in this court. Diligence was wanting; and diligence was required : 41- Georgia, 426. Judgment affirmed.