A suit for divorce was instituted by a husband on grounds of alleged cruel treatment. The defendant filed an answer which denied the allegations as to cruel treatment and alleged certain conduct of the plaintiff reflecting upon his conjugal demeanor, including attentions to another woman, younger and more attractive than defendant. At the trial a verdict for the defendant was returned. The exception is to a judgment overruling the plaintiff's motion for a new trial.
1. When certain testimony was offered by the plaintiff tending to disprove the defendant's answer as to attentions by the plaintiff to the other woman, the attorney announced to the court that he was prepared to strike that part of the answer. The court thereupon excluded the proposed evidence.
Held, that the announcement of the attorney was abandonment of that ground of defense, and the ruling shows no cause for reversal.
2. The charge of the court as complained of in ground 5 of the motion for a new trial, referring to statement of contentions of parties and to the pleadings in the case which would be sent out with the jury to be read by them to ascertain the contentions more in detail, was not cause for reversal. Woodward v. Fuller, 145 Ga. 252 (88 S.E. 974); Varn v. Bloodworth, 157 Ga. 300 (121 S.E. 380).
3. Ground 6, not being insisted on in the brief of the attorney for the plaintiff in error, will be treated as abandoned.
4. Ground 7 is based on alleged newly discovered evidence. It appears by comparison with the brief of evidence that the newly discovered evidence is merely cumulative and impeaching in character, and would not likely produce a different result on another trial. Consequently this ground shows no cause for a reversal. *Page 556
5. The evidence, though conflicting, was sufficient to support the verdict for the defendant. The judge did not err in refusing new trial.
Judgment affirmed. All the Justicesconcur.
No. 13174. JULY 9, 1940.