Calhoun v. Babcock Bros. Lumber Co.

• Decision Date: 07 March 1945
• Docket Number: 15083.
• Citation: 33 S.E.2d 430,199 Ga. 171
• Parties: CALHOUN v. BABCOCK BROS. LUMBER CO. et al.
• Court: Georgia Supreme Court

33 S.E.2d 430

199 Ga. 171

CALHOUN v. BABCOCK BROS. LUMBER CO. et al.

No. 15083.

Supreme Court of Georgia

March 7, 1945

Syllabus by the Court.

In an ejectment suit brought by Babcock Brothers Lumber Company against Calhoun, the plaintiff's right to recover depended solely upon the true location of an east original land line which formed the dividing line between the lands of the parties, and the petition definitely described such line by reference to iron stakes and by alleging further that a part of it had been 'formerly marked by a fence' which the defendant had removed, no other east original line being mentioned in the petition, and no line being mentioned in the answer. The jury trying the case returned the following verdict: 'We, the jury, recommend that the fence be took up and set back on the original line agreed upon by Babcock and Bush, and also recommend that no rent be paid Babcock Company, but that Calhoun have the privilege to remove his fence and posts off of Babcock land,' which verdict the defendant attacked by a suit in equity upon the ground that it was void for uncertainty. Held, that the verdict was not void upon its face, and that the allegations in the equity suit did not show that it was void, as contended; 'the original line agreed upon by Babcock and Bush,' as mentioned in the verdict, being construed to mean the east original line described in the petition in the land suit, nothing to the contrary appearing.

(a) The equitable petition did not state a cause of action, and was properly dismissed on general demurrer.

Stated briefly, the present suit is one in equity to avoid the verdict and judgment in a previous ejectment case between the same parties, on the alleged ground that the verdict was void for uncertainty and failure to cover the issues. So far as here material, the facts touching the former litigation, as revealed by the instant petition, were as follows:

Babcock Brothers Lumber Company sued J. R. Calhoun in fictitious form, to recover a strip of land off the east side of lots of land Nos. 375, 376, and 377 in the 12th district of Miller County, more particularly described as follows 'Beginning at the northeast original corner of said lot of land No. 375, and running south 1 degree 30 minutes east along the east original lot lines of said lots of land Nos. 375 and 376 and 377, a distance of 150 chains more or less, to the southeast original lot corner of said lot of land No. 377, thence cornering and running west along the south original lot line of said lot of land No. 377, a distance of 4.73 chains, thence cornering and running due north and without compass variation across said lots of land Nos. 377, 376, and 375, to the north original lot line of said lot of land No. 375, thence cornering and running 0.57 chains to point of beginning; said tract of land containing in the aggregate 39.75 acres, more or less.'

By amendment, it was alleged that 'the east line of the property sued for is a straight line running from an iron stake which is located at the southeast corner of lot of land No. 377 in the 12th land district of Miller County, Georgia to another iron stake located at the northeast corner of said Lot No. 377, and then running and extending on in the same direction to the north lot line of land No. 375 in the 12th land district of said county; which said line on lot No. 375 was formerly marked by a fence, which said fence was removed by the defendant, J. R. Calhoun, or his employees before the filing of this suit.'

The defendant answered, Not guilty, and this answer and the complaint as amended constituted the only pleadings before the verdict.

The jury returned the following verdict: 'We, the jury, recommend that the fence be took up and set back on the original line agreed upon by Babcock and Bush, and also recommend that no rent be paid Babcock Company, but that Calhoun have the privilege to move his fence and posts off of Babcock land.'

Thereupon, the following decree was entered: 'The above-stated case coming on regularly to be heard at the October term, 1942, of Miller County superior court, and the jury in said case having returned the following verdict [quoting verdict as above]; and the evidence disclosing that the east line of the tract of land sued for in this case is the line which was agreed upon by the plaintiff, Babcock Brothers Lumber Company, and C. C. Bush, predecessor in title of the defendant, Richard Calhoun. It is therefore, considered, ordered and adjudged, that the plaintiff, Babcock Brothers Lumber Company, do have and recover of the defendants, J. R. Calhoun, the land sued for, and it is further ordered and adjudged that the defendant, J. R. Calhoun, have the privilege and right of moving all fencing and posts belonging to said J. R. Calhoun, which are located on the land sued for, and it is further ordered that the plaintiff do have and recover of the defendant $_____ costs of this proceeding.' The verdict and judgment were rendered at the October term, 1942, of Miller superior court.

The facts stated above and appear from the present petition and exhibits attached thereto.

Calhoun filed a motion for new trial, which, after amendment, was overruled; and this judgment was affirmed in Calhoun v. Babcock Brothers Lumber Company, Ga., 30 S.E.2d 872, 878, in which it was held, among other things, that 'no attack having been made as to the sufficiency or certainty of the verdict, except in the brief of counsel, and no question having been raised in the court below that the judgment did not follow the verdict, these questions are not before us for consideration'; which ruling was repeated and amplified on motion for rehearing as follows: 'Since there was testimony which did in fact support the finding as made, and since no fault was found with it when taken in connection with the pleadings, * * * and since the decree * * * follows the findings of the jury taken in connection with the pleadings, we do not think that the verdict can be set aside on the general grounds of the motion for new trial, even though, in order to enter a valid decree, it might have been required to construe the findings, as it was the duty of the court to do, in connection with the petition.'

On July 20, 1944, after the decision by this court, J. R. Calhoun filed the present suit in equity against Babcock Brothers Lumber Company, the former plaintiff, and against W. W. Bird, as clerk of the superior court of Miller County, attacking the verdict in the ejectment case as being void for uncertainty, and as failing to cover the issues made by the pleadings and the evidence.

The petition alleged that the pleadings in the ejectment case do not show 'the Babcock and Bush agreed line referred to in the verdict in said case to be the east line of the tract sued for;' and that 'the evidence in said case totally fails to identify any of the lines, shown by the evidence in said case, to be the Babcock and Bush agreed line referred to in the verdict of the jury in said case; and the evidence in said case does not furnish any key whereby any of the lines shown by the evidence in said case could be identified as such; that is, the Babcock and Bush agreed line referred to in the verdict of the jury in said case; and it is impossible to determine what land the verdict of the jury intended to find that the plaintiff should recover in said case.'

The petition also attacked the judgment on the grounds: (1) It did not follow the verdict; (2) the verdict being void, the court had no jurisdiction or authority to enter any judgment thereon; (3) the judgment itself was void for indefiniteness; and (4) the following clauses were inserted therein by the judge through mistake of law and fact and without any authority or jurisdiction so to do, namely: (a) 'And the evidence discloses that the east line of the tract of land sued for in this case was the line which was agreed upon by the plaintiff, Babcock Brothers Lumber Company, and C. C. Bush, predecessor in title of the defendant, Richard Calhoun.' (b) 'It is, therefore, considered, ordered, and adjudged, that the plaintiff, Babcock Brothers Lumber Company, do have and recover of the defendant, J. R. Calhoun, the lands sued for.' It was also alleged and contended that the judgment should be amended by striking both of these clauses.

It further appeared from the petition that the plaintiff Calhoun is the owner of lots 352, 353, and 354, in the 12th district of Miller County, lying east of and adjacent to lots numbers 375, 376, and 377; and that, although the former suit was an action to recover a described tract of land, it involved only a dispute as to the true location of the original line between the lots owner respectively by the plaintiff and the...