Rocker v. De Loach
| Decision Date | 17 February 1934 |
| Docket Number | 9706. |
| Citation | 173 S.E. 709,178 Ga. 480 |
| Parties | ROCKER et al. v. DE LOACH. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A verdict in favor of the defendant was not demanded, as contended, but a verdict in favor of either party in the lower court would have been authorized. In this state of the record this court will not interfere with the judgment of the trial judge in exercising his discretion in the appraisal of the comparative value of the testimony of the witnesses whose testimony was delivered in the presence and hearing of the court.
2. A charge of the court, if based upon evidence admitted without objection, may be necessary, and is not necessarily erroneous, although in looking strictly to the pleadings there may be nothing in the pleadings with reference to the evidence actually adduced upon the trial. The test which may generally be applied is whether the pleading could have been so amended as to relate to the evidence introduced. During the trial of a case the pleadings cannot be so amended as to set forth a new and distinct cause of action; but where the evidence introduced is pertinent to the issue on trial, and relates to the same subject-matter and the same cause of action, so that the pleadings may be amended, he who would complain that the law as delivered by the court is not adjusted to the pleadings waives the right by failing to object to the introduction of the testimony when it is presented or by moving to rule it out if it has been already introduced.
3. In the case at bar the court did not err in charging the jury as alleged in grounds 4 to 8, inclusive, of the motion for a new trial.
4. The court did not err in its rulings on the admissibility of the testimony set forth in grounds 9 to 12, inclusive, of the motion for a new trial.
5. The court did not err in failing to charge the jury as complained of in grounds 13 and 14 of the motion for a new trial; no timely written request having been presented to the court therefor.
6. The court did not err in overruling the motion for a new trial.
Error from Superior Court, Bulloch County; Wm. Woodrum, Judge.
Suit by R. J. H. De Loach against Mrs. Wyman Rocker and another. Judgment for plaintiff, defendants' motion for a new trial was overruled, and defendants bring error.
Affirmed.
Kirkland & Kirkland, of Metter, and D. C. Jones, of Statesboro, for plaintiffs in error.
Fred T Lanier, of Statesboro, for defendant in error.
R. J H. De Loach brought a complaint against Mrs. Wyman Rocker and Mrs. Alex Woods, seeking recovery of a tract of five and one-third acres of land and located partly in Bulloch county and partly in Candler county, basing his claim of title on two deeds. One deed was executed by Z. T. De Loach to the plaintiff in 1924, and one was from R. W. De Loach to Z. T De Loach, executed in 1876. The defendants answered, denying the plaintiff's claim of title, alleging that defendants and six named brothers and sisters, and their predecessors in title, had been in open, peaceable, adverse, and notorious possession of the land sued for, as part of a large tract owned by them, since January, 1877. On the trial the jury found for the plaintiff. A motion for new trial was overruled, and the defendants excepted.
The small intrinsic value of the land did not prevent a heroic contest in the court below, thus verifying the old adage of the lawyers as to land cases, that the less the land the bigger the fee, especially when a "principle" is involved. We shall deal first with the facts of the case, and later state the principles of law which in our opinion should control the judgment herein. Considering all the facts, it may as well be stated now, because it will become perfectly apparent later on, that this is a contest between two gum trees for precedence or primacy, and the result must depend upon which of the two fixes the true location of the line set forth in the deed under which the plaintiff claimed title. If one of these gum trees prevailed in the contest before the jury, the plaintiff was entitled to recover the land. If the other gum tree found favor with the jury, the plaintiff would have failed to prove his right of recovery, and the jury should have found for the defendant. As shown by the deed which was signed by both parties for the purpose of division of the tract of land owned by them in common, a line described therein is admitted to be a dividing line between them; all land lying north of the line to be the property of Z. T. De Loach, and all land lying south of the line to be the property of his brother, R. W. De Loach. No witness questions, or indeed can question, this statement, on account of the deed. So the case in its progress focused itself on one point--Where was the dividing line mentioned in the deed located? Where was the gum tree, and what gum tree was it on the milldam that was the beginning point of the dividing line, as testified to by the witnesses? The jury had before it the testimony of one of the signers of the deed, Z. Taylor De Loach, now 88 years of age, but whose testimony was clear and definite. He testified that the line described by the deed is run straight from where there is a bend in a branch, in an easterly direction in a straight line to a gum tree on the dam (which we have marked A on the accompanying plat); that this dividing line was distinctly agreed upon at the time of the execution of the deed; that at the time he sold the land to the plaintiff he pointed out the same line to him; that the plaintiff had the land surveyed by the county surveyor, Rushing; that the line run by Rushing, as shown by the plat, set out below was examined by him; and that it correctly delineates the exact line agreed upon between himself and his brother, R. W. De Loach.
(Image Omitted)
The testimony of other witnesses in regard to this line, which we have marked X, was corroborative of that of Z. T. De Loach. So we are of the opinion that the testimony in behalf of the plaintiff would have authorized the verdict. But the defendants (plaintiffs in error) contend that a verdict in favor of the defendants was demanded by the evidence. It would perhaps be unnecessary to refer to this contention, but for the assignments of error based on grounds of the motion for new trial with respect to the charge of the court to which we will refer later. The defendants contended that...
To continue reading
Request your trial