Tritt v. Roberts

• Decision Date: 30 September 1879
• Citation: 64 Ga. 156
• Parties: Tritt. v. Roberts.
• Court: Georgia Supreme Court

64 Ga. 156

Tritt. v. Roberts.

Supreme Court of the State of Georgia

(September Term, 1879.)

[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]

Practice in the Superior Court. Deeds. Title. Prescription. Before Judge Lester. Cobb Superior Court. March Term, 1879.

Reported in the opinion.

A. S. Clay; W. T. & W. J. Winn, for plaintiff in error.

C. D Phillips; Gober & Lester, for defendant.

JACKSON, Justice.

Roberts brought an action of trespass quare clausum fregit against Tritt, for taking and carrying off of lot eight hundred and thirty, in the sixteenth district and second section of Cobb county, certain rails thereon. The jury found for the plaintiff, and the defendant made a motion for a new trial; it was overruled, and thereupon he excepted.

1. One complaint made in the bill of exceptions is, that the court erred in altering a brief of the evidence which had been agreed upon by counsel. This court looks to the presiding judge to certify the bill of exceptions, and not to the counsel. Agreement of counsel without such certificate would not avail to bring the case here in order to have it reviewed. Code, sec. 4252. Therefore the judge may correct the brief of evidence before he decides the motion for a new trial so as to make it conform to the facts proven before him, as he remembers them; and this he may do even after counsel have agreed upon the brief as perfectly satisfactory to themselves. It is upon the judge, not upon counsel, that the law imposes the duty to verify the facts *set out in the bill of exceptions or appended to the motion for a new trial.

2. The plaintiff attempted to show a prescriptive title, and under the evidence, as corrected by the court below, the verdictcould be supported, though the testimony is very conflicting on the question of actual possession of a part of this lot by the plaintiff. But we cannot tell whether the jury passed at all upon that issue, to-wit: continuous adverse possession of lot 830 for seven years, for the reason that the court charged the jury that if this lot, 830, was embraced in the same deed with other lots, and if defendant was in possession of either of the others, that possession extended to the boundary described in the deed and would embrace this lot too. The proof was that plaintiff did possess an adjoining lot, having a twenty acre field thereon cleared and cultivated for years, and a deed was in evidence covering...