Stovall v. Caverly

• Decision Date: 16 January 1913
• Citation: 139 Ga. 243,77 S.E. 29
• Parties: STOVALL v. CAVERLY.
• Court: Georgia Supreme Court

77 S.E. 29

139 Ga. 243

STOVALL

v.CAVERLY.

Supreme Court of Georgia.

Jan. 16, 1913.

(Syllabus by the Court.)

1. Pleading (§ 270^*) — Demurrer—Amplification—Amendment at Subsequent Teem.

The specific grounds of a general demurrer may be amplified by an amendment which states them more fully at a term subsequent to the appearance term.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 816-818; Dec. Dig. § 270.*]

2. Boundabies (§ 52*)—Injunction (§ 48*)— Location — Processioning Proceeding — Estoppel—Trespass—Injunction.

A judgment sustaining the return of pro-cessioners on an issue made by a coterminous landowner as to the location of a division line concludes the protestant from disputing the line marked out by the processioners as the true line, and any invasion thereafter across the line thus established, and upon the land of the adjacent owner by the protestant, would amount to a trespass. If the trespasses be continuous, they may be restrained by injunction.

[Ed. Note.—For other cases, see Boundaries, Cent. Dig. §§ 253-260, 262, 263; Dec. Dig. § 52;* Injunction, Cent. Dig. § 101; Dec. Dig. §48.*]

S. Injunction (§ 200*)—Acts in Bad Faith

—Attorney's Fees.

A litigant who suffers an adverse judgment, and who in open defiance of the judgment continues to annoy and harass his adversary respecting the subject-matter of the litigation included in the judgment, is acting in bad faith. In a suit to enjoin further interference with the rights of the successful party to the judgment, attorney's fees may be recovered under the Civil Code 1910, § 4392. However, counsel fees incurred in procuring the original judgment are not to be included.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 420; Dec. Dig. § 200.*]

4. Damages (§ 89*) — Punitive Damages —

Persistent Trespass.

Under the allegations of the petition, punitive damages, under the Civil Code 1910, § 4504, are not recoverable.

[Ed. Note.—For other cases, see Damages, Cent. Dig. § 203; Dec. Dig. § 89.*]

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Suit by S. C. Stovall against C. E. Caverly. Judgment for defendant, and plaintiff brings error. Reversed.

J. W. Austin and J. D. Kilpatrick, both of Atlanta, for plaintiff in error.

Hines & Jor-dan, of Atlanta, for defendant in error.

EVANS, P. J. Stovall and Caverly owned adjoining tracts of land, and the division line was in dispute. Stovall applied to have his land processioned and the lines marked out The processioners located the line as claimed by Stovall, and Caverly caveated their return. The trial resulted adversely to Caverly, and a judgment was duly entered upon the verdict. Thereafter Caverly continuously and persistently trespasses on the land which was found to be included in the Stovall tract by the processioners' return, and which is in the possession of Stovall, and persistently digs up and cultivates the land. Stovall filed a petition to enjoin further trespass. The petition contained two counts, one praying damages for the trespasses and for attorney's fees in establishing the true line, and preventing the defendant from further trespassing on the land. The second count prayed punitive damages, on the ground that the foregoing facts constitute aggravating circumstances within the meaning of the Civil Code, §§ 4503, 4504. The court dismissed the petition on demurrer, and the plaintiff excepted.

1. The first complaint is that the court permitted the demurrer to be amended at a term subsequent to the appearance term. The amendment was but an amplification of the grounds of the general demurrer. Though a general demurrer may not be amended at a subsequent term by adding thereto grounds of special demurrer (City Council of Augusta v. Lombard, 101 Ga. 724, 28 S. E. 994), yet the grounds of a general demurrer may be amplified by a more specific statement of the alleged defects in the pleading.

2. The general scope of the petition falls within the ruling announced in Martin v. Patillo, 126 Ga. 436, 55 S. E. 240. It was there decided that a judgment sustaining the processioners' return on an issue made by a coterminus landowner as to the location of a division line concludes the protestant from disputing the line marked out by the processioners as the true line, and any invasion thereafter across the line thus established and upon the land of the adjacent owner by the protestant would amount to a trespass; and, If the trespasses be continuous, they may be repressed in equity.

3. The plaintiff alleged: "In persistently and continuously trespassing upon said land, the defendant has acted in bad faith. The defendant has also been stubbornly litigious touching said land line, and has put your petitioner to an expense of more than $500 for attorney's fees, and for other necessary legitimate expenses in establishing said true land line, and in his efforts to prevent the defendant from trespassing upon tract 'D' after the lines had been duly established." The defendant specially demurred to this paragraph of the petition, on the groundthat no facts are set forth showing that the defendant has acted in...