Wesley v. Lewis Bros.

Jenkins, P. J. 1. The evidence, though in sharp conflict, fully authorized the finding that the plaintiff in error, who was one • of- the defendants in the court below, became responsible with the other defendants, to whom the goods were furnished, for the payment of the account sued on. 2. A surety may be sued separately from his principal. Civil Code (1910), § 3559; Amos v. Continental Trust Co., 22 Ca. App. 348 (2) (95 S. E. 1025). See also Cooper v. Cochran Cotton Mills, 30 Ca. App. 343 (118 S. E. 68); Draper, Moore & Co. v. Macon Dry Goods Co., 103 Ga. 661, 663 (30 S. E. 566). Accordingly, the fact that service was not perfected upon the principal debtor to whom the goods were furnished would not affect the validity of the judgment properly obtained against the surety. 3. The granting of new trials on newly discovered evidence is not favored by the courts. Relief can be properly granted upon such an extraordinary ground of a motion for new trial only where it is made to appear that ordinary diligence could not have discovered and produced the evidence thus offered, and it must appear that the witness is fully accredited in the manner provided by law, and that the newly discovered testimony as set forth in the motion is material and relates to a new, specific, and substantive fact, not merely cumulative, or impeaching in its nature, such as should and probably would change the result of the former verdict. Such an extraordinary ground of a motion is addressed to the sound legal discretion of the court; and where the newly discovered testimony is met by a counter-showing, the judge has a broad discretion as trior, and his judgment will not be controlled unless it has manifestly been abused. Cohen Co. v. Brown, 21 Ca. App. 668 (1) (94 S. E. 811); Wright v. State, 18 Ga. App. 705 (90 S. E. 285); Hayes v. State, 16 Ga. App. 334 (85 S. E. 253). In the instant case, assuming that the motion might otherwise have been sufficient to meet the requirements of law, it is nevertheless true that, in view of the strong counter-showing which was made, this court would be unauthorized to say, as a matter of law, that on another trial the newly discovered evidence should and. probably would change the result, and that the trial judge abused his discretion in overruling the motion. Judgment affirmed. Stephens and Bell, JJ., concur. W. B. Soiling sivorih, for plaintiff in error. Culpepper & Murphy, contra.