OCTOBER 13, 1948.
Equitable petition. Before Judge Hawkins. Fannin Superior Court. June 26, 1948.
Wood Tallant, for plaintiffs in error.
William Butt, contra.
1. The verdict is supported by evidence.
2. "In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party." Griffin v. Henderson, 117 Ga. 382 (2) ( 43 S.E. 712).
3. Newly discovered evidence which is cumulative and impeaching in character, and which is not supported by the requisite affidavits, affords no cause for the grant of a new trial.
No. 16370. OCTOBER 13, 1948.
Ruth Ann Crawford Gale filed an equitable petition for the recovery of an alleged interest in certain described real estate, together with the value of timber removed therefrom. The defendants, Paul T. Crawford, Mrs. Willie Mae Crawford Powell, and Mrs. Pearlie Virginia Crawford Haney, a brother and sisters of the petitioner, in their answer as amended asserted title to the described real estate in themselves under an alleged verbal contract, whereby the named brother and sisters were to take care of the mother of the petitioner, and of the defendants during her last illness, it being the contention of the defendants that the petitioner had agreed to give them her interest in the property if they would perform these services. The trial resulted in a verdict for the petitioner, and the exception is to the overruling of the defendants' motion for a new trial, as amended.
1. Ground 1 of the amended motion for new trial avers "that a substantial injustice has been done in the verdict that was rendered in said matter, as the greater weight of the evidence was in favor of the movants." This ground is an amplification of the general grounds. The evidence was not without conflict, but it is the duty of the jury, and not of this court, to pass upon the weight to be given conflicting evidence The evidence for the petitioner amply supported the verdict in her favor. It was not error to overrule the general grounds of the motion for new trial, as amplified by ground 1 of the amended motion.
2. Ground 2 complains that certain evidence was excluded by the court from the jury. It is not shown that a proper tender, with a pertinent question, was made, nor is it shown that such testimony was material, or that it would have benefited the movants. See Bourquin v. Bourquin, 151 Ga. 575, 579 ( 107 S.E. 767); Barron v. Barron, 185 Ga. 346 ( 194 S.E. 905); Williams v. State, 186 Ga. 260 ( 197 S.E. 838); Page v. Brown, 192 Ga. 398 ( 15 S.E.2d 506). It was not error to overrule ground 2 of the amended motion for new trial.
3. Ground 3 is as follows: "Because, since the rendition of the verdict, certain material evidence, not merely cumulative and not solely impeaching in its character, but relating to new and material facts have been discovered by movant, and said newly discovered evidence is set out in an affidavit of Askel Thomas and Thomas J. Hicks, M. D., hereto attached and made a part of this ground, marked Exhibit `A.'"
There is no contention that the probable effect of the newly discovered evidence, if another trial were had, would be to produce a different result favorable to the movants; nor is it shown how, or in what manner, the newly discovered evidence is material to the issues involved; and there are no affidavits showing the residence, associates, means of knowledge, character, and credibility of the witnesses by whom the newly discovered evidence is to be given. The effect of the newly discovered evidence is to contradict the testimony of the petitioner as to her age. It appears that counsel cross-examined her on this point, with the family Bible showing her age in the possession of counsel. The newly discovered evidence is cumulative and impeaching in its effect. This ground of the amended motion is incomplete and fails to show any reason why a new trial should be granted. Code, § 70-204; Patterson v. Collier, 77 Ga. 292 ( 3 S.E. 119); Burge v. State, 133 Ga. 431 ( 66 S.E. 243); Jackson v. Williams, 149 Ga. 505 ( 101 S.E. 116); Ivey v. State, 154 Ga. 63 ( 113 S.E. 175); Blackwell v. Houston County, 168 Ga. 248, 257 ( 147 S.E. 574); Heard v. Smith, 183 Ga. 725 ( 189 S.E. 592). No error is shown in the judgment overruling the motion for new trial as amended.
Judgment affirmed. All the Justices concur, except Bell, J., absent on account of illness.