Biggers v. Mathews

Evans, P. J. 1. “The judgment of the trial court refusing a motion for new trial on the ground of newly discovered evidence will not be disturbed when the motion fails to show, by affidavit of the movant and each of his counsel, that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” Pharr v. Davis, 133 Ga. 759 (66 S. E. 917); Civil Code (1910), § 6068. [858] March 16, 1916. Complaint. Before Judge Fite. Catoosa superior court. March 10, 1915. J. H. Anderson and W. E. Mann, for plaintiff in error. J. H. Johnston and M. L. Harris, contra. 2. On the hearing of the motion for new trial the court adjudged that if the plaintiff write down his recovery to a certain sum a new trial be refused; otherwise it be granted. The action being on an account, the plaintiff reduced his recovery as directed by the court. The evidence authorized a recovery for the amount thus fixed; and as no error of law. is complained of, the judgment refusing a new trial is affirmed. Judgment affirmed. All the Justices concur. NOTE. Two of the Justices were prevented by sickness from participating in the judgments in certain of the cases herein reported, where their absences are noted.