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Lawskills.com Georgia Caselaw
YOUNG et al. v. KENDRICK.
34979.
Trover. Before Judge Mitchell. DeKalb Civil Court. October 23, 1953.
TOWNSEND, J.
1. Even though the evidence for the prevailing party is weak, and even though it is contradicted by other testimony, where there is some evidence to support the judgment as rendered an assignment of error on the general grounds only is without merit.
2. Newly discovered evidence which will warrant the grant of a new trial must not be merely cumulative or impeaching in character, and it must be shown that such evidence could not have been obtained upon the trial of the case in the exercise of reasonable diligence.
Flora E. Young, individually and as administratrix of the estate of her husband, Baxter Young, brought a bail-trover action against Frank Kendrick in the Civil Court of DeKalb County for certain household furniture. The case was by agreement tried without the intervention of a jury, and a judgment was entered in favor of the defendant. Thereafter, the plaintiff filed a motion for new trial on the general grounds, which was later amended by adding one special ground, and the denial of this motion is assigned as error.
State, 104 Ga. 521 (2) (30 S. E. 808). Even though the evidence for the prevailing party is weak, and even though it is contradicted by other testimony, where there is some evidence to support the judgment as rendered an assignment of error on the general grounds only is without merit. Wallace v. State, 77 Ga. App. 434 (1) (48 S. E. 2d 696); Butts v. Whitaker, 14 Ga. App. 630 (1) (82 S. E. 52); Alabama Great Southern Ry. Co. v. Brock, 141 Ga. 840 (2) (82 S. E. 225). Further, the court sitting as a jury might well have believed that part of the testimony of the plaintiff and witnesses in her behalf to the effect that the defendant and plaintiff's deceased husband, Young, did enter into an oral agreement, in her presence and in the presence of the, witnesses, for the defendant to store the furniture, and that later, after they left with the furniture, Young decided to use the defendant's truck and sell the same. There is, therefore, sufficient evidence to support the verdict.
2. The sole special ground of the amended motion for new trial is based on newly discovered evidence as follows: (a) that during the trial of the case the driver Bigby, after testifying for the defendant, stated to another witness that he knew where the furniture was, but was not going to tell anything; and (b) that B. J. Johnson, at the plaintiff's home, on the morning in question, heard the deceased, Young, state in the defendant's presence that the defendant was going to move the furniture and keep and store it for him, and that he was not going to sell his furniture to anyone. Newly discovered evidence which will warrant the grant of a new trial must not be merely cumulative and impeaching in character; and it must be shown that such evidence could not have been obtained upon the trial of the case in the exercise of reasonable diligence. Hill-Atkinson Co. v. Hasty, 17 Ga. App. 569 (87 S. E. 839); Southern Ry. Co. v. Pulliam, 108 Ga. 808 (34 S. E. 147); Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474 (118 S. E. 435). As to the affidavit concerning the statements made by Bigby, the latter was on the witness stand and gave testimony, and was not asked if he knew where the furniture was presently located. Disregarding the materiality of this information, therefore, it is obvious that there was no showing of diligence in obtaining this information from the witness himself. The testimony of Johnson was entirely cumulative in that it merely corroborated testimony of the plaintiff and other witnesses that such an agreement had been entered into on the morning of the day on which the furniture was moved. Accordingly, there was no abuse of discretion on the part of the trial court in failing to grant a new trial on the basis of newly discovered evidence.
The trial court did not err in denying the motion for new trial as amended.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
W. Harvey Armistead, contra.
T. J. Henry, Romae L. Turner, for plaintiffs in error.
DECIDED JANUARY 20, 1954.
Saturday May 23 03:55 EDT


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