Castleberry v. Parrish

• Decision Date: 16 December 1910
• Citation: 69 S.E. 817,135 Ga. 527
• Parties: CASTLEBERRY v. PARRISH.
• Court: Georgia Supreme Court

69 S.E. 817

135 Ga. 527

CASTLEBERRY v. PARRISH.

Supreme Court of Georgia

December 16, 1910

Syllabus by the Court.

Where there is a recital in a bill of exceptions that it was presented to the judge within 30 days from the adjournment of the court at which the decision excepted to was made, and the recitals in the bill of exceptions are certified by the judge to be true, and the record affirmatively shows that the bill of exceptions was signed within 60 days of the judgment complained of, the writ of error will not be dismissed merely because it appears that the date of the certificate was more than 30 days from the date of the decision complained of. In this connection, see Moore v. Kelly & Jones Co., 109 Ga. 798, 35 S.E. 168; Proctor v. Piedmont Portland Cement Co., 134 Ga. 391, 67 S.E. 942. The decisions in the cases of Mayor, etc., of Monticello v. Lawrence, 62 Ga. 672, and Dismuke v. Trammell, 64 Ga. 428, were rendered prior to the act of 1896 (Acts 1896, p. 45).

Since the passage of the Supreme Court practice act of 1893 (Acts 1893, p. 52), as embodied in Civ. Code 1895, § 5534, the fact that the certificate of the judge was not in the exact language prescribed by the act of 1889 (Acts 1889, p. 114) will not require a dismissal of the writ of error. Scott v. Whipple, 116 Ga. 212, 42 S.E. 519. The case of Lovingood v. Roberts, 89 Ga. 417, 15 S.E. 495, was decided before the act of 1893, supra. Accordingly, a bill of exceptions, which contains the recital that it "contains all of the evidence, and contains and specifies all of the record material to a clear understanding of the errors complained of," will not be dismissed because it fails more specifically to recite that it contains and specifies all of the evidence material to a clear understanding of the errors complained of.

This being the trial of a processioning case, the petition to the processioners, with all entries thereon, including the affidavit as to service on the adjoining landowners, and the return of the processioners, and the surveyor's plat were admissible in evidence over the objections of the protestants that the papers were the mere pleadings in the case, were irrelevant and inadmissible for any purpose, and that the pleadings did not contain any description of the land or the lines in dispute.

(a) Upon the introduction of the evidence referred to in the preceding headnote, the plaintiff made out a prima facie case, and there was no error in refusing to grant a nonsuit. Chism v. Wilkerson, 134 Ga. 636, 68 S.E. 425. See also, Augusta Factory v. Barnes, 72 Ga. 217, 53 Am.Rep. 838.

The defendant introduced a deed from the administrator of Josiah Parrish to the plaintiff, executed March 14, 1898, the description of which was in substantial accord with the contentions of the defendant as to the boundaries of the land in question. He also tendered in...