12 S.E.2d 293 | Ga. | 1940
1. Since adoption of the Code of 1863 "it has been permissible for the defendant in ejectment to set up by way of plea any matter which would avail him in a court of equity. The filing of such a plea ipso facto converts the case into an equitable action. The plaintiff may by an amendment to his declaration set up counter equities." Powell on Actions for Land, 129, § 107 (see pp. 86, 88, §§ 60, 61); Code, § 37-901; Charleston Western Carolina Railway Co. v. Hughes,
2. In so far as any of the assignments of error on the rulings admitting or excluding evidence are sufficient to raise any question for decision, they are without merit.
3. This case is not one in which a motion for a new trial is to be reviewed. What purports to be a brief of evidence in the case, set forth in the bill of exceptions, includes documents set forth at length, without elimination of formal, irrelevant, or superfluous parts. It is extensively interspersed with statements, arguments, and colloquies between counsel and between counsel and the court, none of which in anywise throws any light upon the testimony. It shows an entire disregard of the law as to the manner of bringing up evidence in the case, and that there was no bona fide effort to brief the evidence as the law directs. As to sufficiency of a brief of evidence, see Ryan v. Kingsbery,
4. As there was no proper brief of evidence, the judgment of nonsuit, which necessarily involves consideration of the evidence, will be presumed correct.
Judgment affirmed. All the Justicesconcur.
When the case again came up for trial the defendant offered to amend its answer by alleging, that the land consisted of sixty acres worth not more than $600; that its reasonable value for rent was $25 per annum; that defendant had bona fide possession of the land under adverse claim of title and has placed thereon specified permanent improvements consisting of an equipped county "stockade" of the value of $47,600; that in the event title should be found in plaintiffs, defendant was entitled to set off the value of the improvements *134 against mesne profits, as provided by statute. There was an appropriate prayer for such relief. An additional amendment was as follows: "That recovery on the part of the plaintiffs can not and should not be had, because said recovery can not be had without material injury to other county property, and without causing inconvenience to the public, for the reason that the public improvements of Harris County, as set forth and shown in paragraph eight of this amendment, have been placed by said county upon said property described in the plaintiffs' petition; and a recovery of said property by the plaintiffs would materially injure the other property belonging to said defendant, and would cause grave inconvenience to the public, in that the public affairs of said County of Harris could not be carried on in the event the plaintiffs are permitted to recover in this cause." To this paragraph ten the plaintiffs objected upon the grounds that the issues thereby raised "could have and did not have any legal force or effect in a suit in ejectment; and for the reason further that said amendment as contained in said paragraph ten was in conflict with the defense filed by said defendant, and could have no application to the case as made by the pleadings." The amendment was allowed, and the plaintiffs excepted pendente lite. At the conclusion of the evidence introduced by the plaintiffs the judge granted a nonsuit. The plaintiffs excepted, assigning error on the grant of nonsuit, on the pendente-lite ruling, and on admission and rejection of evidence.