139 Ga. 243 | Ga. | 1913
Stovall and Caverly owned adjoining tracts of land, and the division line was in dispute. Stovall applied to have his land processioned and' the lines marked out. The processioners located the line as claimed by Stovall, and Caverly caveated their return. The trial resulted adversely to Caverly, and a judgment was duly entered' upon the verdict. Thereafter Caverly continuously and persistently trespasses on the land which was found to be included in the Stovall tract by the processioners’ return, and which is in the possession of Stovall, and persistently digs up and cultivates the land. Stovall filed a petition to enjoin further trespass. The petition contained two counts, one praying damages for the trespasses and for attorney’s fees in establishing the true line 'and preventing the defendant from further trespassing on the land. The second count prayed punitive damages, on the ground that the foregoing facts constitute aggravating circumstances within the meaning of the Civil Code, §§ 4503, 4504. The court dismissed the petition on demurrer, and the plaintiff excepted.
The plaintiff is not entitled to recover attorney’s fees expended in the trial of the processioning case. Until the judgment was rendered the matter was in dispute, and each litigant should bear his own counsel fees. But the matter is different where a defendant in bad faith and in defiance of the court’s judgment forces the plaintiff to go to the expense of employing counsel in an equity proceeding in order that his rights under the judgment be not disturbed or taken away-. The code declares that: “The expenses of litigation are not generally allowed as a part of the damages;
Judgment reversed.