Colley v. Dillon, 61788
| Decision Date | 30 April 1981 |
| Docket Number | No. 61788,61788 |
| Citation | 158 Ga.App. 416,280 S.E.2d 425 |
| Parties | COLLEY et al. v. DILLON. |
| Court | Georgia Court of Appeals |
Joe K. Telford, Gainesville, for appellants.
Kenneth R. Keene, Cleveland, for appellee.
This is an appeal from a judgment in favor of the plaintiff in a land-line dispute action. The case is in this court pursuant to transfer by the Supreme Court, Colley v. Dillon, 247 Ga. 4, 273 S.E.2d 606 (1981), where it was originally filed.
The original complaint named Mrs. E. P. Colley and her son Gene Colley as defendants. The style of the case was amended before trial to name Mrs. Colley "individually and as administrator of the estate of E. P. Colley." The defendants both in their motion for new trial and in their appeal to this court failed to designate Mrs. Colley as administrator of the estate of E. P. Colley. The plaintiff has moved to dismiss the appeal for this reason. Held :
1. The motion to dismiss is denied. "No appeal should be dismissed or its validity affected for any cause or consideration of any enumerated error refused except for: (1) Failure to file notice of appeal within the time required...; (2) Where the decision or judgment is not then appealable; or (3) Where the questions presented have become moot." Code Ann. § 6-809(b). The notice of appeal was timely filed, was from an appealable judgment, and the questions presented are not moot. Mrs. Colley was a party below in her individual capacity as well as in her capacity as administrator, and she is thus entitled to appeal in her individual capacity. "When there shall be more than one party plaintiff or defendant, and one or more ... plaintiff or defendant desires to appeal, and the others refuse or fail to appeal, such party ... may enter an appeal under such rules and regulations as are provided in this code." Code Ann. § 6-110. See also Code Ann. §§ 6-111 and 6-811. The appeal is properly before us.
2. Plaintiff contended in his complaint that defendants erected a fence which dispossessed him of a portion of his land. The issue as set forth in the pre-trial order concerned the designation of the true boundary line between the respective parcels of land and was set forth by the trial court in the following language: "On the pre-trial hearing each side exhibited surveys of the lines as contended by the respective parties; the court will submit to the jury the issue for determination according to one or the other of the plats ..."
The defendants enumerate as error the following charge: The defendants contend that the quoted charge is impermissibly burden shifting.
"The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential..." Code Ann. § 38-103. The posture of the defendants' case, as set forth in the pre-trial order, involved more than a denial of the plaintiff's right to prevail. The defendants also affirmatively sought to prove a line favorable to them. Their line was presented to the jury on equal terms with that of the plaintiff. Under the circumstances, "it was incumbent upon them to establish their right (to prevail) in the same manner as it was incumbent upon the plaintiff to establish his contentions." American...
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Bunch v. Mathieson Drive Apartments, Inc.
...for a new trial, resulting in the expense and trouble of another trial." (Citations and punctuation omitted.) Colley v. Dillon, 158 Ga.App. 416, 417-418, 280 S.E.2d 425 (1981). The trial court attempted to reconcile the contradictory verdicts by speculating as to the jury's intent in reachi......
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Georgia American Ins. Co. v. Mills, s. 76263
...an improper or imperfect verdict, and to cause the jury to retire and put their verdict in proper form.' " Colley v. Dillon, 158 Ga.App. 416, 417(3), 280 S.E.2d 425 (1981), citing Lowery v. Morton, 200 Ga. 227, 229, 36 S.E.2d 661 6. Georgia American further contends that, upon recharging th......
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White v. Archer Daniels Midland Co., 72390
...form after proper instructions from the court. Lowery v. Morton, 200 Ga. 227, 229, 36 S.E.2d 661 (1946). Accord Colley v. Dillon, 158 Ga.App. 416(3), 280 S.E.2d 425 (1981); OCGA § 9-12-1. The trial judge properly instructed the jury that it was their responsibility to determine the correct ......