Jones v. McWatty

85 Ga. 212 | Ga. | 1890

Bleckley, Chief Justice.

The jury found in favor of the plaintiff’ the premises in dispute and a certain amount for mesne profits. The court thought the finding wrong as to the mesne profits, and ordered a new trial unless the plaintiff would write them off*. The plaintiff having done this, the verdict was left to stand as to the premises. "We think the verdict should have been set aside as a whole, unconditionally. Not only the weight of the evidence was with the defendant below, but the whole of it in so far as it rested upon actual knowledge or professed knowledge by the witnesses examined. The decisive matter was the location of the Eucher trail. This trail is the boundary between Johnson and Washington counties, and is also the dividing line between the lands of the parties to this litigation. If the land in dispute lies on one side of the trail, it is covered by the McWatty grant and is in Washington county, but if on the other side of the trail, it is in Johnson county and is not embraced in that grant. None of the witnesses who testified in behalf of the plaintiff below professed to know where the trail was. Two of those who testified for the defendant said they did know, and they both pointed out three objects, a ford, a walnut tree and a pine stump, as marking the location of the trail, and both of them testified that the disputed premises lay in Johnson county, not in Washington county. One of these witnesses was, so far as appears, wholly disinterested in the present controversy. They were sixty years of age or over, had lived in the neighborhood a great length of time, and their knowledge of the trail dated back forty or fifty years. There was nothing to suggest any error in their testimony, save perhaps the fact that the land granted to McWatty would not hold out in measurement so as to correspond with the grant and the plat annexed thereto, without pushing the trail farther away than the location pointed out by these witnesses. It is altogether improbable that the county line between Johnson and Washington has been lost in the brief time which has elapsed since the creation of Johnson county in 1858. The dividing line must then have been known, and it is not probable that some of the citizens in the neighborhood should not still know it. Here are two who profess to have that knowledge and who show by their evidence that -they have had opportunity to become correctly informed. This trail is not mentioned by name in the act organizing the county of Johnson. But we may take it for granted either that the line has been since changed so as to correspond with the Bucher trail, or else that the trail, though not named, coincides with some part of the, boundary described in the act in other terms, for both parties to this litigation agree in recognizing the Eucher trail as the dividing line between the two counties and as the boundary of the McWatty grant. According to the evidence as it comes up to us in this record, the land in dispute lies in Johnson county. And it follows not only that the plaintiff has no title to it by virtue of the McWatty grant, but that the superior court of Washington county has no jurisdiction to adjudicate the question of title in this action. This question of jurisdiction renders it necessary that we should be more than usually careful to see that the evidence upholds the verdict. Bor, unless it does so, the verdict is not only wrong in its result upon the rights of the parties litigant, but is rendered in a court which has no jurisdiction. In such a case, that there has been a previous verdict for the same party has no weight. Hntil it is shown by evidence that the land lies in Washington county, any number of verdicts declaring, contrary to evidence, that it does lie there, will not serve to establish the jurisdiction ; and without the jurisdiction being established there can be no finality upon the question of title. . Judgment reversed.