Jossey v. Stapleton , 57 Ga. 144 ( 1876 )

Warner, Chief Justice.

The plaintiff brought his action against the defendant on a written contract alleging a breach thereof to his damage $200. On the trial of the case the jury found a verdict for the plaintiff for the sum of $200 00. The defendant made a motion for a new trial on various grounds, which was overruled by the court, and the defendant excepted.

The presiding judge certifies that the 4th and 6th grounds taken in the motion were not true.

1. There was no error in overruling the defendant’s motion for a non-suit because the plaintiff’s cause of action was not set forth with sufficient clearness and distinctness. If the plaintiff’s objection had been well founded it might have been good cause for special demurrer to the plaintiff’s declaration, or to have objected to the plaintiff’s evidence under it, but it was not a good ground for a non-suit.

2. As a general rule, a new trial will not be granted on the ground that a witness, who was. sworn at the trial, states after the trial that he was mistaken as to the facts testified to by him, the more especially when the defendant fails to show to the court by his own affidavit that he did not know the facts were different at the time the witness testified to them at the trial: Mitchell vs. Printup, 25 Georgia Reports, 182; Jones vs. McCrea, 37 Ibid., 48.

3. There is sufficient evidence in the record to support the verdict, and therefore it is not contrary to law nor the evidence. It does not appear from the evidence in the record, that the defendant did not know as much about the fence, or that he did not know that Adams did before and at the time of the trial as afterwards. There was no error in overruling the defendant’s motion for a new trial.

Let the judgment of the court below be affirmed.