Cedartown v. Freeman

[452] Judgment affirmed. The grounds for a new trial were: 1. Verdict contrary to law, evidence, etc. 2. Error in not sustaining defendant’s motion to dismiss the suit, on the ground that no cause of action was set out therein, there being no allegation setting out how and in what way plaintiff was damaged, and because the declaration failed to allege that defendant had notice of the defect in the bridge, or that it had existed a sufficient length of time to be constructive notice. The exceptions stated in the bill of exceptions are simply to the overruling of the motion for a new trial. 8. Newly discovered evidence of R. R. Thompson. In support of this ground Thompson made affidavit that he owned, some years ago, the land on one side of the alley in question, and owned the ground occupied by said alley, and that he has never parted with his title to the ground occupied by said alley and never gave it to the town, nor was it ever condemned for a street or alley by the town so far as he knew; that he made an effort to get Richardson, when mayor, to take it in as a street, and Richardson conditionally promised to work deponent a street out on it, but never did it; and that deponent considers the street his. The counsel for defendant made affidavit that he never knew of the evidence of Thompson as set out in Thompson’s affidavit, until the trial of the case had about ceased, and Thompson was then out of the city and could not be reached as a witness; and that deponent had used all due diligence in looking up the evidence in the case before the trial and failed to discover it. The mayor, recorder, councilmen and marshal made affidavit that they did not know of the evidence of Thompson until after the trial, and that they used all diligence in getting up the evidence in the case. I. F. Thompson and Irwin & Bunn, for plaintiff' in error. Blance & Noyes and Turner & Gross, contra.