Nos. 5206, 5207 | Ga. | Sep 11, 1926
Lead Opinion
1. The defendants filed demurrers, general and special, to the original petition, which were sustained. On writ of error to this court, that judgment was reversed. Thereafter petitioners filed an ancillary petition, and the defendants again filed demurrers on numerous grounds. Substantially all of the grounds of the latter demurrer were included in the original demurrer, and are controlled by the ruling made when the ease was formerly before this court. In some instances the language of the latter demurrer is identical with that of the former demurrer. In other instances the language is different, but the same question is raised. In still other instances, the grounds of the latter demurrer are so vague and indefinite as to present no question for determination. The latter demurrer is without merit, and the court did not err in overruling the same.
2. The court did not err in appointing an auditor. In equity cases the judge may, upon his own motion, when in his judgment the facts and circumstances of any such case require it, refer the same to an auditor. Civil Code (1910), § 5127.
3. The fourth ground of the amended motion for new trial amounts to an elaboration of the general grounds.
4. The fifth ground of the motion for new trial is without merit.
5. While in ground 6 of the motion for new trial movants complain that the charge permitted the jury to find against both parties, movant does not insist that the jury did so find. In order for the ground to have any merit it should show that movant was injured. The judge in the general charge instructed the jury that .they might, under the evidence, find in favor of another land line than the one they did find as the true line.
6. The matter as set out in ground 7 was not requested, and besides it was not a proper charge, and the court did not err in failing to so charge.
7. Complaint is made of the judge’s charge with reference to the Brooke line. The exception to this charge is without merit.
8. Ground 9 of the motion for new trial, which assigns error because of the failure of the court to charge with reference to the apportionment of acreage, is without merit.
9. Ground 13 of the motion for new trial complains of the following charge of the court: “Natural landmarks, being less liable to change, and not capable of counterfeit, shall be the most conclusive evidence; ancient or genuine landmarks, such as corner station or marked trees, shall control the course and distances called for by the survey. If the corners are established, and the lines not marked, a straight line, as required by the plat, shall be run.” This charge is adjusted to the facts of the case, and
10. Grounds of the motion for new trial not specifically dealt with are without merit, or are covered by the rulings made on other assignments.
11. The verdict is authorized by the evidence.
Judgment affirmed. Cross-Mil dismissed.
Rehearing
ON MOTION FOR REHEARING.
The fifth ground of the motion for new trial complains that the court failed to charge that if the original boundary line between the two lots in controversy was lost and could not be located, in that event the jury could apportion the acreage between the two lots. A note by the court which is attached to the fourth ground of the motion for new trial is to the effect that movants requested the court, in writing, to charge that neither party has actual possession of the land in controversy, and that the line in controversy was the original line run in 1832. The auditor found the Hall line to be the line as originally surveyed in 1832; and also the jury, to whom was submitted this issue, so found. Movants do not contend that apportionment would apply unless the 1832 line was lost and could not be found; in which event apportionment would apply. Apportionment has no application, for the reason that there is no evidence upon which a charge upon apportionment could be based. Besides, there was no exception of fact to the auditor’s finding, authorizing such a charge to the jury. The court can submit to the jury, and the jury can pass upon, only the exceptions filed to the auditor’s report. Had the court submitted to the jury this question, as contended for by movants, it would have been beyond the scope of the exceptions to the auditor’s report. See McDonald v. Dabney, 161 Ga. 711 (2, 3) (132 S.E. 547" court="Ga." date_filed="1926-02-24" href="https://app.midpage.ai/document/mcdonald-v-dabney-3401465?utm_source=webapp" opinion_id="3401465">132 S. E. 547); Harris v. Lumpkin, 136 Ga. 47, 52 (70