1. The newly discovered evidence, relied upon as ground for a new trial, is merely cumulative or impeaching in character, and cannot be said to be such as to require the grant of a new trial.
2. The general grounds of the motion for a new trial, not being argued or insisted upon in this court, are treated as abandoned.
3. The judge of the superior court did not err in overruling the assignments of error, in the petition for certiorari, on the overruling by the city court of the defendant's motion for new trial.
H. C. Lord brought an action of trover against L. I. Wiggins, in the City Court of Cairo, to recover a Chevrolet truck. On the trial Lord testified in effect: He purchased a Ford truck from Wiggins on December 13, 1950, for $3000, to be paid in monthly instalments beginning on January 5, 1951, and, on the same day, loaned his Chevrolet truck to Wiggins, as Wiggins was intending to get out of the hauling business but had a few more trips to make. He gave Wiggins a note and bill of sale to the Ford truck to secure its purchase price of $3000, but paid nothing thereon. Wiggins foreclosed the bill of sale; and, on the day after the foreclosure, execution was levied upon the Ford truck, and Lord for the first time demanded the Chevrolet truck back from Wiggins.
The defendant Wiggins testified substantially as follows: He sold the Ford truck to Lord for $4000, allowing $1000 for Lord's Chevrolet truck, which he took in trade, as a down payment, leaving a balance of $3000 due on the Ford truck. He had a man connected with the Ford place at Pelham to prepare the note and bill of sale to the Ford truck, which he foreclosed on January 23, 1951, although the levy thereof was not made until February 12, 1951, the day after Lord had offered to rescind the trade. Lord had promised to send Wiggins a bill of sale to the Chevrolet truck but had never done so.
A storekeeper in Pelham, unnamed in the brief of evidence, testified that his store, was next to Wiggins' home lot, and that Lord had been there, waiting to see Wiggins, and had stated that he was going to see if he could trade his truck for Wiggins' truck.
A man connected with the Ford dealer in Pelham, also unnamed in the brief of evidence, testified that Wiggins and Lord had come to the Ford place on December 13, and that Wiggins, in Lord's hearing and presence, had requested him to prepare a note and bill of sale to cover $3000, stated to have been due as the balance of the price of a Ford truck sold by Wiggins to Lord, on which Lord had traded to Wiggins a Chevrolet truck, in part payment, and that Lord made no objection to Wiggins' statement.
The plaintiff then introduced the testimony of his brother-in-law, Milton Thompson, which was to the effect that he had told Lord that Wiggins' truck was for sale and went to Wiggins' house with Lord to make the trade; that he had suggested the possibility of trading Lord's Chevrolet truck as part of the price of the Ford truck; but that both parties had declined this proposal, Lord saying that he did not want to dispose of his Chevrolet truck, and Wiggins saying that he did not want the Chevrolet truck. Thompson's account of the terms of the sale was the same as Lord's.
The jury returned a money verdict in favor of the plaintiff, and the defendant moved for a new trial on the general grounds and on four special grounds pertaining to evidence discovered since the time of the trial, as shown by supporting affidavits which were in substance as follows: (1) H. H. Parker and his wife swore that Lord had brought a Ford truck to their garage in Moultrie for repairs in December, 1950, but was unable to pay for the work; that credit was extended to Lord upon his giving the security of a second lien upon the Ford truck and his note, endorsed by another person; and that Lord stated that the Ford truck was the only property on which he could give papers, as his car and furniture were already tied up, but that he had a substantial equity in the Ford truck.
(2) O. L. Beverly, Sheriff of Colquitt County, swore that Lord told him that he had traded a truck to Wiggins as part of the purchase price of the Ford truck which Wiggins had sold to Lord. C. R. Ranew, a deputy sheriff, swore that he was present with Sheriff Beverly when Lord told them that he had traded his Chevrolet truck to Wiggins for a Ford truck.
(3) Carroll Collins in his affidavit recalled that he had heard Lord state on December, 13, 1950, that he had traded a Chevrolet truck to Wiggins on a Ford truck as a down payment.
(4) E. D. Jones swore that he knew Milton Thompson, who worked on Jones' trucks on weekends during December, 1950, or January, 1951; that Thompson told him then that Lord had traded trucks with Wiggins and was to pay Wiggins a difference of $3000; and that Thompson had laughed about Lord's having stuck Wiggins in the trade by giving him a truck with a broken-down motor.
The motion for a new trial was overruled, and Wiggins applied to the Superior Court of Grady County for a writ of certiorari, which was issued and answered, showing the facts to be substantially as above stated. The superior court affirmed the ruling of the city court and overruled the certiorari, to which judgment Wiggins excepts.
1. "A new trial may be granted in all cases when any material evidence, not merely cumulative or impeaching in its character, but relating to new and material facts, shall be discovered by the applicant after the rendition of a verdict against him, and shall be brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial." Code, 70-204. "A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony. and to the case . . ." 38-1803. The testimony of E. D. Jones, as set our in the affidavit supporting the fourth special ground of the motion, consisted of declarations by Milton Thompson who was not a party to the case. Such testimony is ordinarily classed as hearsay ( Hattaway v. Dickens, 163 Ga. 755 (5), 137 S. E. 57), but is admissible for the sole purpose of impeachment under Code 38-1803, supra. Therefore, such newly-discovered evidence is not a ground for a new trial.
However, extrajudicial admissions of a party are not merely impeaching; and where such admissions show a new and distinct right to recover, or a different theory of recovery from that relied upon at the trial ( Mills v. May, 42 Ga. 623 (2); Gregory v. Harrell, 88 Ga. 170, 14 S. E. 186), or where similar extrajudicial admissions of the same party were not proved upon the trial of the case ( Collins v. Loyd, 31 Ga. 128), such evidence may be ground for a new trial. But such does not appear in the present case.
Kermode, 85 Ga. 116 (4) (11 S. E. 560); Erskine & Co. v. Duffy, 76 Ga. 602 (5); Hammond v. Scoggins, 21 Ga. App. 406 (94 S. E. 582); McKinnon v. Henderson, 145 Ga. 373 (3) (89 S. E. 415).
Upon the trial of the present case, the defendant relied upon the testimony of the Pelham storekeeper to show that Lord had admitted to him, just prior to consummating the transaction in question, that he was intending to trade his Chevrolet truck to Wiggins; and the defendant also introduced the testimony of the man who worked in the Ford agency in Pelham to show that the defendant had stated to the witness the terms of the trade of Lord's Chevrolet truck for Wiggins' Ford truck, in Lord's presence and hearing, under circumstances requiring Lord' to have denied the statement in derogation of his asserted title to the Chevrolet truck if the statement was untrue (Code, 38-409), thereby rendering Wiggins' declaration the admission of Lord, as it would otherwise have been objectionable as a mere self-serving declaration.
The evidence set out in the first three special grounds of the motion consisted of similar admissions by Lord, although made to other witnesses, all to the effect that Lord had traded his Chevrolet truck for Wiggins' Ford truck. This was evidence of the same grade and tending to show the same facts as the evidence already adduced on the trial, and so it was cumulative. We are unable to say, any more than were the two courts which have already passed upon the question, that the evidence offered in support of the motion would have probably produced a different result if submitted to a jury upon another investigation; and therefore it does not require a new trial.
2. While the general grounds of the motion for new trial were insisted upon in the petition for certiorari, they are neither argued nor insisted upon in this court, and are treated as abandoned.
3. The judge of the superior court did not err in overruling the assignments of error in the petition for certiorari.
FELTON, J., concurring specially. I concur in the judgment for the reason that the trial judge was authorized to find that the defendant and his counsel could have discovered the alleged newly discovered evidence by the exercise of ordinary care before trial. The defendant contended that he anticipated that the plaintiff would contend only that there was a rescission of the trade of the Chevrolet truck, and did not anticipate that the plaintiff would contend that the Chevrolet truck was merely loaned to the defendant. At the trial the defendant put up two witnesses to rebut the plaintiff's testimony that the Chevrolet truck was loaned to the defendant and not traded. In the absence of explanation as to why these witnesses were present and available for such purpose other than the defendant's anticipation of the claim made by the plaintiff, the judge was authorized to find that the defendant anticipated the contention that the Chevrolet truck was loaned and not traded, and that by the exercise of ordinary care he could have discovered before the trial the evidence allegedly newly discovered.