Gray v. Junction City Mfg. Co.

• Decision Date: 17 November 1942
• Docket Number: 14346.
• Citation: 22 S.E.2d 847,195 Ga. 33
• Parties: GRAY et al. v. JUNCTION CITY MFG. CO.
• Court: Georgia Supreme Court

22 S.E.2d 847

195 Ga. 33

GRAY et al. v. JUNCTION CITY MFG. CO.

No. 14346.

Supreme Court of Georgia

November 17, 1942

Syllabus by the Court.

1. A ground of a motion for new trial must be unconditionally approved by the trial judge; and where, as here, to special grounds 1 and 3 the judge appends qualifying notes which refer to the general charge, the pleadings, the evidence, and argument of counsel, as showing the truth of the recitals of such grounds, they are not unqualifiedly approved, and will not be considered by the Supreme Court.

2. Where an excerpt of the charge to the jury, instructing them that should they make certain findings their verdict should be in favor of the plaintiff, begins with the instruction that if they should make such finding from a consideration of the evidence and the charge of the court the charge is not subject to the criticism that it intimates an opinion as to what has been proved, or that it assumes that the facts which are recited as findings which the jury must make before returning a verdict for the plaintiff are true.

3. Where a petition in equity alleges a continuing trespass upon a described tract of land by cutting and removing timber therefrom, and prays for judgment in damages on account of such trespass, for decree of title in plaintiff to the land involved, and for injunction to prevent further trespass, and on the trial the judge instructs the jury to find a verdict on the single issue of damages, and a verdict is returned in favor of the plaintiff for a stated amount, a decree based upon the verdict awarding judgment for the amount of damages fixed, decreeing title to the land described in the plaintiff, and enjoining further trespass, follows the verdict, conforms to the pleadings, and is not invalid because the jury was required to render a verdict on the single issue of damages.

The petition of Junction City Manufacturing Company against Riley Gray and Mrs. Mildred Brown alleged that the plaintiff has been the true owner of land lots 30, 31, 42 and 43 and fractional land lots 6 and 7 in the 16th land district of Talbot County, Georgia, since about January 30, 1928; that Mrs. Mildred Brown owns land immediately west of the described land of the plaintiff; that in 1930 the dividing line was uncertain and in dispute, and for the purpose of locating and definitely defining the line Mrs. Brown employed Williams, who was surveyor of Taylor County, to survey and lay out the dividing line, the line so surveyed and laid out by Williams to constitute the east line of lands of Mrs Brown and the west line of petitioner's land; that Williams surveyed the line, and cut and blazed trees along said line, and otherwise definitely marked it, and the line is now visible and capable of identification; that petitioner and Mrs. Brown at all times thereafter acquiesced in the Williams line as the dividing line, such acquiescence being evidenced by such overt acts as cutting timber, building fences, and posting signs indicating ownership up to the line as marked by Williams; that Mrs. Brown has recently sold the timber on her land to the defendant Gray, who has begun cutting the timber; that on August 16, 1941, Gray crossed the well-marked Williams line and cut and damaged petitioner's timber; and that Mrs. Brown is now claiming a strip of the plaintiff's land lying immediately east of the Williams dividing line and varying in width from 100 to 175 yards. The plaintiff prayed for damages; that the defendants be enjoined from continuing the trespass; that title to the strip of land in dispute be decreed to be in petitioner; and for general relief.

The defendants in their answers denied acquiescence in the Williams line, or any knowledge of such line. They alleged that in February, 1941, E. A. Morton, a surveyor of Stewart County, Georgia, surveyed the lots and marked the only dividing line that there is, which is the correct line. They denied the allegations of trespass, and prayed for damages suffered as a result of the suit; that the plaintiff be enjoined from cutting trees on any land west of the line run by E. A. Morton; and that 'the line run by the said E. A. Morton be set up as the true line.'

A verdict for the plaintiff, with award of $5 damages, was returned by the jury. Decree was entered, that the plaintiff have judgment for $5 and costs against the defendants; that title and right of possession of the strip of land is in the plaintiff; and enjoining the defendants from further trespass thereon. The defendants objected to the decree, on the ground that it was not authorized by the verdict, since the judge withdrew from the jury all issues save that of damages for trespass, and confined them to a verdict upon this one issue. Exceptions pendente lite were taken to the overruling of these objections. The court overruled a motion for a new trial, and the defendants excepted, assigning error on that ruling and on the ruling excepted to pendente lite. The general grounds of the motion for a new trial have been expressly abandoned by counsel for the plaintiffs in error.

John A. Smith, of Talbotton, and R. S. Foy and C. W. Foy, both of Butler, for plaintiffs in error.

John G. Cozart, of Columbus, and Homer Beeland, of Reynolds, for defendant in error.

DUCKWORTH Justice.

1. The first special ground of the motion for a new trial sets forth an excerpt from the charge to the jury, where the contentions of the parties are stated, on the grounds that the charge is argumentative, in that the plaintiff's contentions are more fully given; that it is confusing, in that the expressions 'the plaintiff alleges' and 'the plaintiff shows' are used therein; and that the charge does not express the contentions of the parties with equal fairness. The trial judge appended the following note to this ground of the motion: 'By reference to the pleadings in the case and the charge of the court, it will be seen that in my charge to the jury I stated with equal fairness the contentions of the plaintiff as well as of the defendant. No request for further instructions was made.' Ground 3 complains of an excerpt from the charge, where the court instructed the jury that if they should make certain findings from the evidence they should return a verdict in favor of the defendants. This charge is assailed on the ground that in fact that was no contention of the defendants and no evidence upon which to base the charge that Morton ever established any line between these lands, and that the right of the defendants to prevail did not depend upon the existence of a line run by Morton. The judge appended a note quoting portions of the defendants' answer where it is averred that there is no line except the Morton line, that the defendant Mrs. Brown has agreed to no dividing line except the line run by Morton, and that this line is the true line. The note also recites that Morton, as a witness for the defense, testified that he ran a line between lands owned by the plaintiff and Mrs. Brown; that counsel for the defense argued to the jury that the true dividing line...