Poland v. C. C. Osborne Lumber Co, (No. 17654.)

• Decision Date: 20 September 1927
• Docket Number: (No. 17654.)
• Citation: 37 Ga.App. 212,139 S.E. 734
• Parties: POLAND et al. v. C. C. OSBORNE LUMBER CO. et al.
• Court: Georgia Court of Appeals

37 Ga.App. 212

139 S.E. 734

POLAND et al.

v.C. C. OSBORNE LUMBER CO. et al.

(No. 17654.)

Court of Appeals of Georgia, Division No. 2.

Sept. 20, 1927.

(Syllabus by Editorial Staff.)

Error from Superior Court, Lincoln County; W. L. Hodges, Judge.

Protest to return of processioners filed by the C. C. Osborne Lumber Company and others against Nonie Poland and others. Judgment for protestants, and defendants bring error. Affirmed.

Wm, H. Fleming, of Augusta, for plaintiffs in error.

Callaway & Howard, of Augusta, for defendants in error.

Syllabus Opinion by the Court.

STEPHENS, J. [1-3] 1. Parol testimony as to the contents of a written instrument is inadmissible where the instrument itself is not admissible. A plat of land which is not shown to be official or correct is not admissible in evidence. Maples v. Hoggard, 58 Ga. 315; Parker v. Salmons, 113 Ga. 1167 (3), 39 S. E. 475. The testimony of a witness that he has several times seen the "title deeds and plats" is insufficient to establish the correctness of the plat, and the plat itself would be inadmissible. It follows that where the plat, without having been recorded, was destroyed by fire, parol testimony of the witness as to the contents of the plat is inadmissible. The court properly excluded the testimony offered as to the contents of the plat.

2. "A witness cannot be impeached by proving contradictory statements previously made by him as to matters not relevant to his testimony and to the case." Hudgins v. Bloodworth & Co., 109 Ga. 197, 34 S. E. 364. Testimony of a witness that he was one of the jurors upon a former trial of the case and that the jury had no trouble in reaching a verdict is not as to matters relevant to the case. Testimony of another witness in contradiction of this statement and showing that the jury had some difficulty in reaching a verdict was properly excluded.

3. This being an issue tried in the superior court upon a protest filed to the return of processioners, where the jury found in favor of the line as contended for by the protestants, and the evidence being conflicting as to which was the true line, and it not being conclusively established without dispute that the line run by the processioners had been acquiesced in for any period of time by the respective owners of the adjoining tracts, or that the tract of land in dispute had been in actual possession of the landowners relying upon the return of the processioners under a claim of right for more than seven years, and the...