Cain v. Robinson , 32 Ga. App. 476 ( 1924 )

Stephens, J.

1. The evidence authorized a finding that the property levied upon, viz. several bales of cotton, was produced upon land occupied by the defendant in fi. fa. as tenant of another, and that, although the claimant, who was the defendant’s minor son and who lived with him, may have helped produce the cotton, the title was nevertheless in the defendant in fi. fa. Although the burden of proof in this case was upon the plaintiff in fi. fa., the verdict found for the plaintiff in fi. fa. against the claimant was authorized.

2. The alleged newly discovered evidence to the effect that the claimant had executed certain rent notes, thereby constituting him tenant of the land upon which the property in controversy was produced, which evidence it was contended by the movant was relevant as establishing the fact that the claimant and not the defendant in fi. fa. occupied the land and produced the cotton, was, if true, a fact clearly within the knowledge of the claimant, and the trial judge, in passing upon the motion for a new trial upon this ground, was authorized to find that such evidence could easily have been discovered by the exercise of ordinary diligence upon the part of the claimant.

Decided July 14, 1924. W. C. Brinson, for plaintiff in error. B. L. Stephens, contra.

3. The trial judge did not err in overruling the claimant’s motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.