Manning v. Roberson

23 S.E.2d 473 | Ga. Ct. App. | 1942

In a processioning proceeding, where the protestants introduced no evidence sufficient to overcome the prima facie case made by the return of the processioners, the judge did not err in directing the verdict in favor of the applicants.

DECIDED DECEMBER 4, 1942. 1. When there has been no bona fide attempt to brief the evidence as required by law this court will not pass on assignments of error requiring its consideration. This rule will not be enforced in the present case for the reason that an attempt seems to have been made in good faith to brief the same as required by law. An insufficient and defective briefing of the evidence, in violation of the Code, § 70-305, is not always ground for dismissing the writ of error. In the instant case the brief of evidence is somewhat faulty and contains some superfluous matter, but it is not such a flagrant violation of the statute providing for the making of the brief as to require this court to disregard it and decline to determine questions involving a consideration of the evidence. Boston Insurance Co. v. Harmon, 66 Ga. App. 383 (18 S.E.2d 84); SouthernMining Co. v. Brown, 107 Ga. 264 (33 S.E. 73).

2. W. M. Roberson and J. R. Roberson filed a statutory petition for a processioning proceeding seeking to establish the western original land-lot line of lot 95 in the 3rd land district of Brantley County, Georgia. And this would establish, according to the petition, the western boundary line between the Robersons and Mrs. Macie Manning et al. The Robersons alleged the Manning land to be in lot 34. On the trial the deed of the Mannings showed that their lands were in lot 33, and it was impossible for there to have been a boundary line between lot 33 and lot 95, for lot 33 does not touch lot 95 except at the northwest corner of lot 95 and at the southeast corner of lot 33. Hence, the Mannings, who were the protestants, against whom the jury found in the superior court, had no evidence to overcome the prima facie case made out by the return of the processioners. The judge did not err in directing the jury to enter the following verdict: "We the jury find as directed by the court in favor of applicants J. R. Roberson and W. M. Roberson and against protest, and sustain return of processioners as directed by the court on ground Manning heirs do not claim any property in lot 34 and that J. R. Roberson W. M. Roberson claim no property in lot 33, 2nd dist. Brantley Co. Ga."

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.