Wood v. Hamilton
| Decision Date | 07 April 1964 |
| Docket Number | No. 3,No. 40532,40532,3 |
| Citation | 137 S.E.2d 61,109 Ga.App. 608 |
| Parties | Pope T. WOOD v. Marie HAMILTON |
| Court | Georgia Court of Appeals |
1. Under Georgia law the applicant for processioning makes out a prima facie case for the boundary line found by the processioners by filing their return and plat without further proof.
2. Where it is sought to assign error on a trial judge's comments in a colloquy with counsel which occurred during a trial, it is a condition precedent to appellate review that a proper objection or motion for mistrial must have been made at the time of the occurrence. Error assigned on the judge's remarks for the first time in a motion for new trial will not be considered.
3. It is never error for the trial court to refuse to direct a verdict.
4. The special grounds of the motion for new trial complaining of the exclusion of evidence are without merit as none reveals that the court was apprised of the answer expected to the question propounded on direct examination by counsel for the protestant.
5. Special ground 10 of the motion for new trial is incomplete because the plat, which the trial judge refused to admit in evidence, is not attached as an exhibit to the amended motion for new trial; it is neither identified in the record nor certified by the trial judge, and the ground fails to 6. In assigning error in a motion for new trial on the refusal of a trial judge to charge the jury a submitted written request, it is essential, inter alia, to show that the request was submitted to the trial judge prior to the jury's retiring to consider their verdict.
show why the documentary evidence was rejected.
7. Inadmissible newly-discovered evidence does not authorize the grant of a new trial.
Ham & Hampton, James G. Hampton, Forsyth, for plaintiff in error.
John G. Davis, Clayton, for defendant in error.
Marie Hamilton filed an application on June 31, 1961, with the processioners of the 1138th District G.M. of Towns County to mark anew the boundary line between her land, purchased in 1954, and that of Pope T. Wood, purchased from his mother in 1952. After due notice to Wood, the processioners and the surveyor filed their return and plat fixing the line at S 43 degrees 00 W for a distance of 467.6 feet from a double white oak tree on the south side of U.S. Highway No. 76. The double white oak tree is an undisputed boundary mark, and the line fixed by the processioners is in accord with the descriptions used in five deeds in Marie Hamilton's chain of title, beginning with that of J. W. Foster, the grandfather of Pope T. Wood. Wood protested the line as run by the processioners and alleged that the true line runs S 43 degrees 00 E from the double white oak tree. He alleged further that there were no visible marks to substantiate the line run by the processioners but that there is an old fence along the line which he claims to be the true line. The existence, extent, and period of duration of this fence is sharply disputed in the evidence. The processioners' line intersects the corner of an addition to a store building owned by the protestant. Construction of the addition began just prior to the application for processioning. The processioners' line also intersects a chicken house which plaintiff allegedly constructed in 1953. Protestant claims that all of the grantors in applicant's chain of title, beginning with protestant's grandfather, made the same mistake in their deed descriptions and actually agreed with the boundary he claims to be the true one.
The protest was tried and the jury rendered a verdict in favor of the applicant. The protestant excepts to the trial court's judgments refusing to dismiss the proceedings and denying his motion for new trial.
1. Under Georgia law the applicant for processioning makes out a prima facie case for the boundary line found by the processioners by filing, as in this case, their return and plat without further proof. Code § 85-1606; Castleberry v. Parrish, 135 Ga. 527, 528(3), 69 S.E. 817; Philpot v. Wells, 69 Ga.App. 489 (2), 26 S.E.2d 155. The motion to dismiss was properly denied by the trial court.
For the same reason the court correctly denied ground 11 of the amended motion for new trial objecting to the admission in evidence of the processioners' plat.
2. There is no merit in special grounds 5, 6, and 8 of the amended motion for new trial, for even if the trial court erred in the comments and colloquy with counsel during the trial as set forth in these grounds, which we do not decide, a proper objection or motion for mistrial should have been made at the time of the occurrence to give the trial court an opportunity to correct any possible prejudicial effect of his remarks by appropriate instructions to the jury or other action. In the absence of this objection, and none is disclosed by the record, error assigned on the judge's remarks for the first time in the motion for new 3. There is no merit in ground 12 of the amended motion for new trial. It is never error to refuse to direct a verdict. Guest v. Baldwin, 104 Ga.App. 809, 811, 123 S.E.2d 194, and see the numerous cases annotated under catchword 'Refusal' in Code Ann. § 110-104.
trial will not be considered. Moore v. McAfee, 151 Ga. 270, 275, 106 S.E. 274; Herndon v. State, 178 Ga. 832, 833, 850, 174 S.E. 597; Shepherd v. State, 203 Ga. 635, 47 S.E.2d 860; Davis v. Peek, 43 Ga.App. 199, 158 S.E. 348; Cline v. State, 49 Ga.App. 16, 174 S.E. 194; Lumbermen's Underwriting Alliance[109 Ga.App. 611] v. First Natl. Bank etc. Co., 100 Ga.App. 217, 223, 110 S.E.2d 782; Darby v. McNelley, 103 Ga.App. 570, 120 S.E.2d 153; Flanigan v. Reville, 107 Ga.App. 382, 384, 130 S.E.2d 258.
4. Special grounds 4, 7, and 9 of the amended motion for new trial, complaining of the exclusion of evidence, are without merit, since it does not appear that the court was apprised of the answers expected to the questions rejected by the court as propounded on direct examination by counsel for the protestant. McDonald v. Wimpy, 202 Ga. 8, 13(4), 41 S.E.2d 257; Lefkoff v. Sicro, 189 Ga. 554(7), 6 S.E.2d 687, 133 A.L.R. 738; Hines v. Donaldson, 193 Ga. 783, 796(3), 20 S.E.2d 134.
5. Special ground 10 complains of the court's refusal to admit in evidence a plat drawn by R. G.Sutton in 1934. This ground is incomplete and cannot be considered because the plat is not attached as an exhibit to the amended motion for new trial, it is not otherwise identified in the record nor certified by the trial judge, nor is this court directed to the portion of the record where it may be found. Further, the ground fails to show why the documentary evidence was rejected. Smith v. Manley, 96 Ga.App. 158(1), pp. 160, 99 S.E.2d 534; Gaskill v. Brown, 103 Ga.App. 33, 36(2), 118 S.E.2d 113. And see Maxwell v. Hollis...
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