Leathers v. Leathers

Beck, J.

(After stating the facts.)

1. In her motion for a new trial the plaintiff in error complains of the overruling, by the court below, of a motion for a continuance, which was submitted when the case was called for trial. But it does not appear, upon an examination of the evidence relied upon to support the motion, that the court abused its discretion in refusing the continuance. The movant testified, in reference to this motion, that she did not feel able to go into the trial of "the case; that she had not been well for some time, having been in bed four or five days before she left home for the purpose of coming to court, and she did not feel that she could do herself justice and assist in the trial of the case, as she ought to, so as to protect her own interests; that she had not been in such health for several months as would permit her to see her counsel so' as to prepare the case for trial. But she also testified, that “she was about as well as usual; she had been in very bad health for near six months, some time up, but a great time in bed.” Her counsel stated in his place that he could not do justice to the case “in the present state of my client’s health; she is an important witness; and besides, I need her assistance in the trial. She has only one son, and he has been away most of the time, and I could not rely on him for any assistance in this case.” In his statement, he corroborated what his client had sworn in reference to her ill health, and, in addition, stated that his client had been sick for a long time, that she lived in Atlanta, and that he had not been able to confer with her So as to ascertain the necessary facts for the preparation of the case. This motion for a continuance was addressed to the sound) discretion of the court; and while it appears from the evidence in the record that the showing for a continuance was not without merit, still we can not say that the court abused its discretion in overruling the motion. Not only did the movant state that she was about as well as usual, but it must also be remembered that she was present in court, and the trial judge had, while we have not, an opportunity of seeing the party, who was also a witness, of hearing her talk ahd testify, and of forming, from his own observation, an idea as to her physical condition of health, and her ability to advise and counsel with her attorney. The showing made for a continuance, upon the ground of the absence of a material witness, was defective, as appears from the record, in that it does not appear who the absent witness was, not even his name being given. All these circumstances being considered, we conclude there is no such manifest abuse of discretion as to require a reversal of the judgment of the court upon this ground.

2. The fifth ground of the motion is based upon the overruling by the court of a motion made by the defendant in the court below to dismiss the case. The motion thus overruled was urged upon the ground that “the only title the plaintiff relies upon is from Peter Leathers,” and then adds, that this relying upon Peter Leathers being in possession of the land at the time of his death is insufficient to entitle him to recover. This motion was in the nature of a general demurrer; and rulings of the court upon issues thus made should be attacked by exceptions filed pendente lite, with proper assignments of error therein, when the case is finally brought up, or by direct exceptions, if the bill of exceptions to the final judgment is tendered within time to make exceptions to the rulings in regard to the pleadings. Such a ruling furnishes no proper ground for a motion for a new trial. Turner v. Barber, 131 Ga. 444 (62 S. E. 587). What we have just said above disposes also of the sixth ground of the motion for a new trial, which complains of rulings made by the court in striking certain portions of the defendant’s plea.

3. Several grounds of the motion assigned error upon 'rulings, of the court excluding certain testimony which was offered by the defendant. The testimony thus excluded was offered to show that the grantee in the deed did not, at the time of the execution of the deed, have money of his own sufficient to make the payment of the sum recited in the deed as a consideration for the conveyance, and to show further that, subsequently to the execution of the deed, both the grantor and grantee had at divers times denied the execution of the deed, and denied its existence, and the further fact that the grantor remained in possession of the land after the making of the deed, and, while thus in possession, had been heard to declare that the land was his property. The grounds of the motion just referred to were without merit. This is not a ' case in which creditors of the grantor in the deed are putting in issue the validity of the conveyance or asking that it be set aside. In fact, it does not appear that there were any creditors. And considering the testimony which was repelled in connection with that which was admitted, the evidence as a whole woujd not authorize a finding in favor of the defendant upon her contention that the deed was executed by the grantor when he was in a drunken condition, or that it was executed to defeat any claim upon her part for alimony. In fact, there is no evidence to show that she 'had instituted, or was about to institute, or was in a position to institute proceedings for the recovery of alimony.

4. No other verdict than that rendered was possible, under the evidence in the case; and the court did not. err in directing the verdict in favor of the plaintiff for the land in controversy, submitting to the jury the question of the amount to be .recovered as mesne profits.

5. When a motion for a new trial “is made on the ground of newly discovered evidence, it must appear by affidavit of the movant‘and each of his counsel that they did not know of the. existence of such, evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” Civil Code, §5481. The affidavits of movant and her counsel, showing that they did not know of the existence of the newly discovered evidence, upon which the last ground of the amended motion is based, while they have been included in the record before us, are not properly a part of the record and can not be considered, as they are not embodied in any of the pleadings of the case, nor in the bill of exceptions, nor are they attached to the motion as an exhibit, nor referred to in the motion, nor are they properly identified by the signature of the judge. And, consequently, this last ground of the motion for a new trial will not be considered. See, in this connection, Summerlin v. State, 130 Ga. 791 (61 S. E. 849).

Judgment affirmed.

All the Justices concur.