Ballard v. Harmon , 202 Ga. 603 ( 1947 )

1. The discretion vested in the trial court in refusing to grant a new trial on the ground of newly discovered evidence is never abused where the affidavits relied upon do not conform to the requirements of the Code § 70-205. Irey v. State, 154 Ga. 63 (6) (113 S.E. 175); Anderson v. State, 190 Ga. 460 (9 S.E.2d 642).

2. Where an extraordinary motion for new trial is based on newly discovered evidence, and a counter showing is made which tends to refute the evidence relied upon, the action of the trial court in refusing a new trial will not be reversed unless it appears that the discretion vested in such court has been abused. In this case there does not appear to have been any abuse of the discretion so vested.

3. The trial court properly overruled the extraordinary motion for new trial.

No. 15903. SEPTEMBER 5, 1947. On a former appearance in this court the bill of exceptions in the present litigation was dismissed. See Ballard v. Harmon,200 Ga. 813.

The auditor's report was filed on September 11, 1945. Exceptions to the auditor's findings of law and fact were filed by the plaintiff in error on September 29, 1945. On October 1, 1945, the plaintiff in error filed an amendment to his exceptions to the auditor's findings of law and fact, and moved the court to recommit to the auditor for further hearing the matters set out in the exceptions and in the motion to recommit. The exceptions and motion to recommit were overruled by the trial judge on December 21, 1945. Exceptions pendente lite were not taken to the order overruling the exceptions of law and fact and motion to recommit of the plaintiff in error. On December 31, 1945, a final decree was entered by the judge of the superior court. The plaintiff in error excepted in a direct bill of exceptions to the order overruling his exceptions of law and fact to the auditor's report, and his motion to recommit, and to the final judgment and decree.

After judgment by this court dismissing the writs of error for failure to make necessary parties (Ballard v. Harmon, supra), the plaintiff in error presented to the judge of the superior court presiding in the cause, on July 22, 1946, an extraordinary motion for new trial based on the ground of newly discovered evidence. Rule nisi was issued to the defendant Harmon to show cause, and he filed a motion to dismiss and a response to the matters set forth in the affidavits attached to the extraordinary motion. The extraordinary motion for new trial was denied on April 12, 1947, and the exception here is to that judgment.

An examination of the exceptions of law and fact filed September 29, 1945, reveals that the matters set forth in the extraordinary motion for new trial were therein set out as newly discovered evidence, except for the affidavit of G. R. Hogg. The only other evidence not before the court on the exceptions of the plaintiff in error is an exhibit to the affidavit of one witness.

While affidavits were attached as to the credibility of witnesses and the diligence of counsel, there were no affidavits as to the associates of the witnesses, nor their means of knowing the facts testified to by them. Only the third syllabus of the opinion requires any further statement or explanation.

"A judgment of a trial court, which after a writ of error stands unreversed, or to which no exception has been taken, is the law of the case." Palmer v. Jackson, 188 Ga. 338 (4 S.E.2d 28). The bill of exceptions which attacked the final decree was dismissed by this court (Ballard v. Harmon,200 Ga. 813, 38 S.E.2d 437). Until such time as the judgment entered overruling the exceptions of law and fact to the finding of the auditor shall be reversed or set aside, such judgment stands as the law in this case. In order for the plaintiff in error to procure any further relief, the judgment of the trial court overruling his exceptions of law and fact to the auditor's report, and the subsequent final decree, must both be vacated and set aside. If the plaintiff in error relies on his so-called extraordinary motion for new trial as a proper procedure to vacate and set aside existing judgments, he is confronted with the rule that a motion for new trial is not the proper remedy to correct an alleged error in any judgment or decree entered by the trial court. See Moreland v. Stephens, 64 Ga. 289; Creech v. Richards, 76 Ga. 36; Barber v. Barber, 157 Ga. 188 (121 S.E. 317); Smith v. Wood, 189 Ga. 695 (7 S.E.2d 255); Harper v. Perry, 190 Ga. 233 (9 S.E.2d 160);Williams v. Cross, 197 Ga. 295 (28 S.E.2d 924).

The Code, § 110-501, provides: "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside."

All of the evidence now relied upon as grounds of newly discovered evidence to support the extraordinary motion for new trial was submitted to the trial court in the exceptions filed to the auditor's report, or by the exercise of any degree of diligence could have been so submitted. Relied upon as newly discovered evidence (not before the court in the exceptions filed) is the evidence of G. R. Hogg, who states that there are errors in his audit which was filed as a part of the auditor's report. His affidavit does not point out or enumerate any such errors and states no facts that would authorize a different finding.

Matters which have been submitted to the consideration of the trial court, and an adverse ruling obtained thereon, can never be a proper subject-matter as grounds for an extraordinary motion for a new trial.

Judgment affirmed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.