Rattaree v. Morrow , 71 Ga. 528 ( 1884 )

Hall, Justice.

1. This case makes two questions: 1st. Where a protest is filed by the party notified, to the report of processioners, is he or his opponent entitled, upon the trial of the issue made by the protest, to begin and conclude the argument before the jury ? There is no direct rule upon the subject, and no. reason occurs to us why the applicant for the proceeding is differently situated from any other plaintiff or movant, in respect to this question. Where there is evidence on both sides, the plaintiff has the right to open and conclude the argument.

2. Under the facts of this case, were the proceedings of the processioners void ? In Watson vs. Bishop et al., 69 Ga., 51, we held that “processioning was designed to prevent controversies concerning boundaries of land between adjacent owners., by having the lines around the entire tract of an applicant surveyed and marked, and this must be done m order to make the lines between such adjacent owners prima, facie correct and admissible in evidence without further proof. Where it is apparent on the face of the papers that the processioners. have not complied with this requirement, their return is without legal effect under the processioning laws.” In the present case, it is insisted that this defect in fact existed, although it was not apparent on the face of the papers, and although nc protest was made to the return on this special ground, yet it appeared, in the evidence adduced on the trial, oí the protest, and for that.reason the verdict finding in favor of theprocessioners1 line was contrary to law, and should have been set aside upon protestant’s motion, and a new trial granted.

The petitioner for the processioning asked that the lines around the tract of land in his district be surveyed and marked anew ; the protestant was only notified, and was present at the processioning, and made no objection, then or afterward, because the lines around the entire tract were not run, and because only one of these lines was surveyed and marked anew, this being the line that separated his lands from the applicant’s. The plat made out and returned by the surveyor is certified to be a true representation of the lines between applicant and protestant, while the report of the processioners shows that they only surveyed and marked one line, that which divided the lands of applicant and protestant. The protest set up that this was not the true line, but another one was, which was therein pointed out. On the trial Of this issue, there was much conflicting evidence, and the jury, as we have said before, found in favor of the line surveyed and marked anew by the processioners. The court admitted the surveyor’s plat over the objection of protestant, but rejected the report of the processioners, on his objection, upon the ground that this was not properly returned to the court; that the surveyor’s plat alone was properly returned, and that alone was prima facie evidence under the statute. We think this latter ruling was erroneous ; that both are necessary parts of the proceeding; and that one is incomplete without the other, is apparent from. §2392 of the Code, which requires the processioners to make a return of their acts, together with the plat of the surveyor, to the ordinary of the county, to be kept of file in his office, when taken in connection with Code, §2390, which provides for the making and filing of a protest by the owner of adjoining lands to the lines as run by the processioners and surveyor, and for the return of the proceedings, together with the protest, to the superior court for trial.

It is true, as contended by protestant, that it is the surveyor’s duty to make out and certify a plat of the lines, etc., and to deliver a copy thereof to the applicant, which, in all future disputes arising in respect to the boundary lines of the tract, with any owner of adjoining lands, having notice of the processioning, would be deemed prima facie correct and admissible in evidence without further proof. Code, §2386. Whether the rule of evidence provided for under this section obtains on the trial of the issue made by the protest, may admit of doubt; but the entire proceeding duly returned is in the nature of a judgment, and is prima facie binding until set aside, and under that view is admissible in evidence to shift the onus, and if not success-

fully assailed, or acquiesced in, would, it seems to us, be conclusive to the extent of its legal force and effect. This error of the court, in rejecting the return of the processioners, is one, however, of which the protestant cannot avail himself, since it was made on his own motion. It is also true that the protest may be amended at any stage of the cause, and it may be that, if the return of the processioners, including the plat of the surveyor, showed a failure to comply -with the law, in not ascertaining the boundaries of the entire tract, and marking them, that the court would have no jurisdiction to take further cognizance of the case. ( Watson vs. Bishop, 69 Ga , 51, 54.) Yet such is not the case here; the want of these jurisdictional facts, if such they be, is not apparent upon the face of these proceedings. The conduct of this protestant throughout the trial, and indeed the entire proceeding, until the case reached this court, would imply strongly their existence; surely, he cannot be permitted to try the experiment of obtaining a verdict in his favor, and holding back, this controlling point in the event of his failure, to make use of it to defeat and overthrow his adversary. This would be to trifle with the process of the law, and to try before this court questions waived in the lower court,, and not passed upon in the trial of the cause. There is nothing upon which error can be assigned here; it is the judgment, ruling, or decision alone of that court, that can be reviewed here, upon a specification of errors distinctly alleged.

Judgment affirmed.