Magid Orchards Corp. v. Moody , 178 Ga. 222 ( 1934 )

Gilbert, J.

■ This litigation arose out of a dispute between coterminous landowners as to the true line between two land lots. Magid Orchards Corporation is the owner of lot No. 159, 13th land district, Habersham County. Defendant Moody owns the southwest portion of lot 179 of the same district. The two lots adjoin the full length of the lots. Plaintiff also claimed title to the disputed strip by right of twenty years prescription. Plaintiff filed a petition setting out these facts, and further that the defendant was trespassing upon the land, gathering apples from its orchard, and placing tenants in a dwelling-house of plaintiff; that the defendant is insolvent, etc. The prayer was for injunction. The defendant answered, denying title of the plaintiff to the strip of land in dispute, and alleged trespass and damages to her property by the plaintiff. The prayers of the defendant were similar to those of the plaintiff, and also for damages. The issues of fact were submitted to a jury, and a verdict “for the defendant” was returned. The plaintiff moved for a new trial on the general grounds, no complaint being made that any errors of law were committed during the progress of the trial. The motion was overruled, and the movant excepted. Eeld:

1. The verdict is supported by evidence, and was approved by the trial judge.

2. Neither the petition nor the answer contains such allegations and prayers as are necessary to constitute “an equitable action of ejectment,” as in English v. Little, 164 Ga. 805 (2 b) (139 S. E. 678).

3. The affirmance by this court is not to be construed as approving the judgment of the trial court in adjudicating the title as between the contending parties. There is no assignment of error on that judgment, and the motion for new trial does not bring the question before this court and could not do so. “A motion for a new trial is not the proper means for correcting an error in a decree alleged to be unwarranted by the verdict and pleadings.” Berry v. Clark, 117 Ga. 964 (4), 968 (44 S. E. 824) ; Thomas v. Clarkson, 125 Ga. 72 (7) (54 S. E. 77, 6 L. R. A. (N. S.) 658) ; Barter v. Barber, 157 Ga. 188 (121 S. E. 317), and cit.

Judgment affirmed.

Russell, O. J., Beok, P. J., and Atkinson and Bell, JJ., concur.