Philpot v. Wells, 30023.

• Decision Date: 08 June 1943
• Docket Number: No. 30023.,30023.
• Citation: 26 S.E.2d 155
• Parties: PHILPOT et al. v. WELLS et al.
• Court: Georgia Court of Appeals

26 S.E.2d 155

PHILPOT et al.

v.WELLS et al.

No. 30023.

Court of Appeals of Georgia,

Division No. 2.

June 8, 1943.

Syllabus by the Court.

1. Where the only objection made by protestants to the return of processioners is that the line as run by them was not the correct line, a verdict in favor of the return of the processioners is not without evidence to support it in that it does not appear that any written application for the running of the line was made by the applicants to the processioners, that the processioners and the surveyor had been duly sworn, that the return of the processioners had been sworn to, that it does not appear that the processioners marked a line anew, but that it does appear from the return that the processioners did not mark any line anew, and that it does not appear that the surveyor who made the plat was the county surveyor.

2. The return of the processioners and the surveyor's plat attached thereto as a part of the return, introduced in evidence by the applicants, who are the plaintiffs in this case, constitute a prima facie case.

Error from Superior Court, Haralson County; Wm. W. Mundy, Judge.

Proceeding on the application of J. E. Wells and another to have applicants' land line surveyed and marked anew, wherein J. C. Philpot and another filed a protest against the return of the processioners. After a verdict in favor of the return, protestants' motion for a new trial was overruled and protestants bring error.

Judgment affirmed.

D. B. Howe, of Tallapoosa, and Olin T. Flournoy, of Cedartown, for plaintiffs in error.

Claude V. Driver, of Bremen, for defendants in error.

STEPHENS, Presiding Judge.

On November 10, 1941, J. V. Philpot and J. N. Philpot filed, with the ordinary of Haralson County, their protest against a return of processioners which purported to mark the line between land of the protestants and land of J. E. Wells and Gus Wells, applicants. The only ground of protest was that the line as run by the processioners was not the true dividing line between the two tracts of land. The case came on for trial in the superior court, on the issue as thus made. The verdict of the jury was in favor of the return of the processioners. The protestants moved for a new trial on the general grounds, and two special grounds which will later be referred to. To the overruling of the motion the protestants excepted.

Since it is conceded by counsel for the protestants that the evidence as to what constituted the true line between the two tracts of land was in conflict and that the verdict in favor of the return of the processioners was authorized by the evidence, it is unnecessary to inquire into the evidence on this issue.

The return of the processioners with the surveyor's plat attached was admitted in evidence. Nowhere in the record does it expressly or affirmatively appear that any written application for the running of the line between the two tracts of land was made to the processioners, that the processioners and the surveyor had been duly sworn as required by law, or that the return of the processioners was sworn to. It is insisted by the protestants that it does not appear from the return of the processioners that they marked a line "anew" between the land of the applicants and the protestants, but that it does appear from the return that the processioners did not mark any line "anew". It is also insisted that it does not appear that the surveyor who made the plat and whose name is signed thereto was the "county surveyor." It is contended that these alleged defects and omissions render the verdict contrary to law, as without evidence to support it. The only issue as made in the protest was as to the correctness of the line which the processioners had run. This issue is determinable without reference to any alleged defects or omissions such as here insisted on, which could go only to the validity of the return of the processioners. Such alleged defects or omissions can not constitute an insufficiency of the evidence to sustain the verdict in favor of the processioners' return. Any invalidity in the return of the processioners, such as here claimed, can not be taken advantage of in a motion for new trial. There is no merit in the contention of counsel for the protestants that by reason of such alleged defects and omissions the verdict was without evidence to support it.

It is recited in the return of the processioners that they were "applied to by J. E. and Gus Wells to trace and mark anew the lines between the said J. E. and Gus Wells and Joe and Jasper Philpot." While the law requires an application in writing to the processioners by an...