McCullough v. East Tennessee, V. & G. Ry. Co.

• Decision Date: 20 December 1898
• Citation: 32 S.E. 97,106 Ga. 275
• Parties: McCULLOUGH v. EAST TENNESSEE, V & G. RY. CO.
• Court: Georgia Supreme Court

32 S.E. 97

106 Ga. 275

McCULLOUGH v. EAST TENNESSEE, V & G. RY. CO.

Supreme Court of Georgia

December 20, 1898

Syllabus by the Court.

1. Where a brief of evidence was filed with in the time prescribed, by an order duly granted, wherein it was provided that such brief might be approved at the hearing of the motion for a new trial to which this brief related, an approval at the hearing was in time.

2. That a brief thus approved merely referred to, and in this manner made a part thereof, a former brief of evidence, which has been filed, approved, and made a part of the record in the same case, without incorporating the old brief in the new afforded no cause for dismissing the motion for a new trial.

3. A verdict in an ejectment case, whereby the jury undertake to find for the plaintiff a portion only of the premises sued for, and the terms of which are so vague and indefinite that the land therein referred to cannot be located and identified by construing the verdict in the light of the pleadings, and the metes and bounds of which could be arrived at only by resorting to extrinsic evidence, is too uncertain to support a judgment.

Error from superior court, Glynn county; J. L. Sweat, Judge.

Action by J. H. McCullough against the East Tennessee, Virginia & Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Crovatt & Whitfield, for plaintiff in error.

Goodyear & Kay, for defendant in error.

SIMMONS C.J.

McCullough brought his complaint for land against the East Tennessee Virginia & Georgia Railway Company. The petition alleged that the defendant was in possession of a certain strip of land 2,500 feet in length, and 17 feet more or less in width, and that this strip was a part of certain lands which had been leased by the mayor and council of the city of Brunswick to certain parties, who had assigned these leases to the plaintiff. The railway company defended under a lease from the same authorities made in June, 1868, and a license granted in March, 1871; the contention being that the defendant had gone into possession of the land, and built thereon its roadbed, and had been in continuous and adverse possession for more than 20 years before the plaintiff filed his action. Upon the trial of the case, the jury returned the following verdict: "We, the jury, find for the plaintiff for that portion of the land in dispute on which the defendant railroad company built their track in 1890, and we also find for the plaintiff in the sum of $3,125, for rent up to date, January 25, 1897." A motion for a new trial containing several grounds, was made by the railway company, and granted generally by the judge, being the second grant of a new trial. See McCullough v. Railway Co., 97 Ga. 373, 23 S.E. 838.

1, 2. When the motion for a new trial came on to be heard, the respondent moved to dismiss it upon the ground that the motion was "not accompanied by any legal, and duly filed and approved or agreed, brief of evidence." This motion was overruled, and the respondent excepted. It appears from the record that on January 29, 1898, the judge granted an order giving the movants 30 days within which to prepare and file a brief of evidence in the case. In the same order, he allowed the movant to refer to in, and thus make a part of this brief of evidence, a brief of evidence filed and approved in the first motion for a new trial, without incorporating it in the second brief. The brief of evidence was filed on February 23, 1898, and at the hearing, February 28, 1898, after some corrections had been made, the judge approved it. Under these facts, it was not error for the judge to refuse to dismiss the motion. The brief of evidence in the first motion for new trial had become a record of the court, and had been agreed upon and approved, and we think the court could allow it to be made a part of the new brief merely by reference, without incorporating it therein; it appearing that the old brief was used in the second trial for the purpose of contradicting one of the witnesses for the plaintiff, and that it was agreed by the parties that the whole of it should go in evidence on this trial. What was the object of counsel in putting in the whole brief does not appear. It was a mere repetition, in many respects, of the oral evidence taken on the last trial. There was, in our opinion, no excuse for dumping the whole of the old brief into the case, when only a portion of it was needed for the purpose of contradicting the witness. The better practice would have been to use that part only which was necessary for the contradiction of the witness, and to include the part so used in the new brief. It is bad practice to incumber the records with voluminous documentary evidence, when it is...