Patterson v. Collier , 77 Ga. 292 ( 1887 )

Bleckley, Chief Justice.

1. Exhibits annexed to a motion for new trial, and referred to therein as annexed, are part of the record proper, and though constituting the evidence on which the motion was decided, they need not be incorporated in the bill of exceptions. This overrules the motion which was made to dismiss this writ of error, which motion was founded on the fact that the bill of exceptions did not set out certain documentary matter that was annexed as exhibits to the motion for new trial, and which came up in the record, duly certified, as a part of the motion. We rule that whatever is an exhibit to the pleadings, and thus in the case all the time as a part of the pleadings, though it may be also part or the whole of the evidence, need not be put in the bill of exceptions, but may come up, both as evidence and pleading, under the clerk’s general certificate to the transcript of the record. 62 Ga. 617.

2. An extraordinary motion for a new trial, based alone upon newly-discovered evidence, ought not to prevail unless there has been full diligence to procure the evidence before the trial; nor unless the new evidence would probably produce a different verdict if a new trial were had. There is nothing new in this proposition, and it is not worth while to pause to elaborate it.

3. A general statement that all possible diligence was used may need reduction to particular acts; and affirming that inquiry was made of numerous persons, every person, etc., may not suffice where no names of any persons are mentioned, and no reason assigned for the omission. The judge below, as appears from the record, was not satisfied with the diligence used. Exactly what the ground of dissatisfaction was in his mind, we do not know; but we can see that he may have felt some curiosity to know what acts of diligence were performed; and when it was said that inquiry had been made of every person, etc., it might have occurred to him that it would have been well to mention some of those persons. None of them were named, I believe, in the showing made. Then, again, there was another matter for consideration: it was that the missing evidence was in the State of Alabama, not very far distant from the residence, in Georgia, of the movant; and there were certain indications not very thoroughly followed up, as to where the needed witness might have been found if he had been looked for.

4. That a deed bears date in 1838, is attested by a justice of the peace who ivas not commissioned until 1841, and is on paper bearing the water-mark, “1840,” will justify a strong suspicion of its want of genuineness, more especially if the body of it . is in the handwriting of the feoffee, and the signature is apparently in the same handwriting Avith the body. This deed, as to its genuineness, had once been litigated in its absence. The litigation was in Georgia (see Patterson vs. Collier, 75 Ga. 419), and at the time of trial the deed Avas m Alabama, and it never made it s appearance in this litigation until after it was pronounced a forgery. It was discovered no very great while after being thus degraded, and made its appearance m court as the subject-matter of this extraordinary motion for neAv trial, and when examined it presented the marks that I refer to above. The judge, in adjudicating the extraordinary motion, was not satisfied that the verdict, upon a new trial, would or ought to be anything different from that which was rendered before, and we agree with him. So the judgment is affirmed.