Irvin v. Oliver

• Decision Date: 09 March 1967
• Docket Number: No. 23915,23915
• Citation: Irvin v. Oliver, 154 S.E.2d 217, 223 Ga. 193 (Ga. 1967)
• Parties: J. A. IRVIN v. A. B. OLIVER.
• Court: Georgia Supreme Court

Page 217

154 S.E.2d 217

223 Ga. 193

J. A. IRVIN v. A. B. OLIVER.

No. 23915.

Supreme Court of Georgia.

March 9, 1967.

Syllabus by the Court

1. An assertion that the defendant caused another person to commit a trespass on the lands of the plaintiff is germane to an action against the defendant for continuing trespass.

2. A party can not complain in this court of an instruction to the jury when his counsel at the trial specifically acquiesced in the giving of such instruction.

Duncan & Wall, R. F. Duncan, Lawrenceville, for appellant.

Davis & Davidson, Jack S. Davidson, Jefferson, for appellee.

COOK, Justice.

A. B. Oliver, as life tenant entitled to the exclusive possession of described land, and A. B. Oliver and Marion Harber Hill, as executors of the estate of Lovic Oliver, brought a petition against J. A. Irvin, seeking to enjoin a continuing trespass. This court, in Oliver v. Irvin, 219 Ga. 647, 135 S.E.2d 376, affirmed the judgment of the trial judge holding that there was a misjoinder of parties because the executors had assented to the devise to the life tenant, but reversed the judgment dismissing the petition, this court holding that the remaindermen were not indispensable parties to the action. The redrafted petition was brought in the name of A. B. Oliver, as life tenant.

The jury found for the plaintiff and found that the dividing line between the plaintiff and the defendant was that shown by a plat made by J. E. Hope, dated February 14 and 15, 1956, attached to the plaintiff's petition as an exhibit. The appeal is from the judgment entered on this verdict. The errors assigned are the overruling of the defendant's special demurrers to Paragraphs 8 and 9 of the petition, and the charge to the jury pertaining to processioning.

1. Paragraphs 8 and 9 of the redrafted petition are as follows: '8. On or about the 1st day of June, 1962, the defendant, J. A. Irvin, sold an adjoining tract of land to one Coker and falsely represented to Coker the true dividing line between the lands conveyed to him and the lands of plaintiff, hereinabove described. 9. That the said Coker in good faith entered upon said lands and cut and removed valuable timber and lumber therefrom based upon the false information given him by J. A. Irvin as to the correct boundary between the properties owed by J. A. Irvin and the properties owed by plaintiff.'

The special demurrers attacking these paragraphs assert that they refer to a transaction between the defendant and a stranger to the action, which does not constitute any part of a continuing trespass with which the defendant could be charged by the plaintiff in this action; and that the allegations are irrelevant, immaterial, not germane to the cause of action sued on, and inserted solely for the purpose of prejudicing the jury against the defendant.

'In all cases he who maliciously procures an injury to be done to another, whether it is an actionable wrong or a breach of contract, is a joint wrongdoer, and may be sued either alone or jointly with the actor.' Code § 105-1207; Graham v. Dahlonega Gold Mining Co., 71 Ga. 296. 'One who procures or assists in the commission of a trespass, or does an act which ordinarily and naturally induces its commission, is liable therefor as the actual perpetrator.' Burns v. Horkan, 126 Ga. 161(3), 54 S.E. 946.

The allegations that the defendant sold a part of his property adjoining the property of the plaintiff and falsely represented the boundary line, causing this person to commit a trespass on the plaintiff's land, was germane to the action for continuing trespass, and it was not error to overrule the special demurrers to these paragraphs of the petition.

2. Error is assigned on a portion of the charge dealing with processioning. It is the contention of the defendant that the law pertaining to processioning was not applicable to either the pleadings or the evidence in the case. A processioning proceeding involving the disputed boundary line between the parties to the present action had been dismissed because of the failure of Oliver (the plaintiff in the present case) to join the remaindermen in the proceeding. The Court of Appeals affirmed that judgment. Oliver v. Irvin, 105 Ga.App. 844, 125 S.E.2d 695.

The plat relied on by ...