Watson v. Bishop, 69 Ga. 51

Watson v. Bishop

69 Ga. 51 | Ga. | 1882

Crawford, Justice.

The questions presented in this case for the judgment of the court, are:

(1.) Whether the return made by processioners, which sho.ws upon its face that they did not have a survey made of the entire tract of land of the applicant, is such a compliance with the law for processioning as to give the applicant any of those rights to which he would be entitled if legally done.

(2.) Whether after a protest by adjoining owners has been filed, in which the aforesaid fact is not set up as a ground of objection, the same may be amended by inserting it therein, and claiming all the benefits arising from its omission after several terms of the court have elapsed.

1. Processioning was designed to prevent controversies concerning the boundaries of land between adjacent owners, and originally they were required, once in every ten years, to have their lands “ processioned or gone around and the land marks renewed.” It is, however, now confined to cases where the owner of any particular land desires the lines around his entire tract surveyed and marked anew. And an examination of the law of processioning will show that there is no provision for any other manner of tracing and marking'the lines of adjacent owners, so as to make the said lines prima facie correct and admissible in evidence without further proof. This, then, being the law, where it is apparent upon the face of the papers that the processioners have not complied therewith, their return is without legal effect, in so far as the same purports to have been' done under the law providing for the processioning of lands.

2. Touching the second question made, it will be seen that the protest allowed by law to be filed is to be returned to the clerk of the superior court, who is to enter the same .on the issue docket as other causes, to be tried in the same manner and under the same rules as *54other cases. This being so, the right of amendment existed at any stage of the cause, in all respects, whether in matter of form or of substance. Besides, under the facts as set out in the record, we are not prepared to hold that any amendment was necessary. The return of the processioners, including the plat of the surveyor, showed the failure to comply with the law, and thereby the want of jurisdiction in the court to take further cognizance thereof; hence the motion to dismiss was properly in order.

Judgment affirmed.