Kinsey v. Avans , 196 Ga. 428 ( 1943 )

1. Assignments of error and grounds of a motion for new trial which are not argued or insisted upon by counsel for the plaintiff in error will be treated as abandoned.

2. In view of the contention of the parties as set out in their pleadings, it was not erroneous to charge the jury that the question at issue was the location of the line dividing land lots 102 and 103, and whether or not the defendant had crossed over the dividing line.

3. In view of the issues made by the pleadings and the proofs, a ground of a motion for new trial is without merit which complains that the court, without request, failed to charge the provisions of the Code, § 85-1601, on the subject of disputed land lines.

4. An instruction to the jury, that if the plaintiff was in possession of the lands in dispute under a deed, and that such possession was prior to the time the defendant went into possession, the plaintiff should prevail unless the defendant acquired a title by prescription, is not subject to the criticism that in effect it instructed the jury that the controlling question was one of title, whereas under the pleadings and the evidence it depended upon the identification of the dividing line. Other portions of the charge dealt with the specific issue as to the location of the line, and of an agreed line and acquiescence therein.

5. There is no merit in the contention that the judge committed error as against the defendant in charging that if the jury found that the lines were as contended by the plaintiff, they should find in his favor, unless they found that with knowledge he for a period of seven years or more acquiesced in the line claimed by defendant. The omission, from this portion of the charge, of the words "acts or declarations of adjoining landowners" was not hurtful to the movant.

6. That the judge, in charging on the law as to an agreed line, or one that had been acquiesced in for seven years, used language that might have been understood by the jury to mean that an oral agreement between coterminous proprietors on a certain line as the true line, although accompanied by possession of each up to the agreed line, would be invalid unless acquiesced in for seven years, affords no sufficient reason for the grant of a new trial, since the evidence does not present the theory of any executed parol agreement as to where the agreed line should be.

7. It was at most mere harmless error to admit in evidence an improperly attested deed relating to the land claimed by the defendant in error, over the objection that the execution thereof had not been proved, the plaintiff in error as a witness in his own behalf testifying that "The only controversy me and Mr. Avans [the defendant in error] is where the line between lots 102 and 103 is located;" the pleadings and the evidence showing that the claim of the plaintiff in error was based on land in lot 102 and that of the defendant in error on land in lot 103.

8. In view of the issues and the charge as a whole, it was not error to fail to charge, without request, that where two persons claim to have actual possession of the same land, he shall be deemed in possession who has the legal title, and the other is a trespasser.

9. In a suit where the only prayers, aside from process and for general relief, are one to enjoin a trespass and another to enjoin the defendant from selling, and the judge instructs the jury that they must find either for the plaintiff or the defendant, the verdict as returned, "We, the jury, find the verdict in favor of plaintiff," is not so uncertain that it can not be made the basis for a decree.

No. 14582. JULY 8, 1943. The suit was to enjoin a trespass. There was no prayer for damages. It developed that the sole controversy resolved itself into an issue as to where the line was between the lands claimed by the respective parties. There was considerable evidence concerning where an old fence used to be. The jury returned the following verdict: "We, the jury, established old fence row as line" (signed by the foreman). The motion for new trial recites, that upon publishing this verdict the court instructed the jury that the same was not satisfactory, and that the jury must find either for the plaintiff or the defendant, in accordance with law previously given in the charge to the jury; that the jury thereupon, pursuant to direction of the court, retired to the jury-room. Shortly thereafter the jury again returned, and brought in the following verdict: "We, the jury, find the verdict in favor of plaintiff. This 16th day of September, 1940. [Signed] G. W. Cross, Foreman." Whereupon the court entered a decree conformably to the contentions of the plaintiff. This further recital is contained in the motion: "Movant avers that the jury in its first verdict established the line substantially as contended by movant in his answer and testimony offered in support thereof, and that the first verdict when construed with the pleadings in evidence was in fact a verdict in his favor, and that when the court refused to accept said verdict the jury (apparently in confusion) failed altogether to establish any line between the parties, but returned a verdict for the plaintiff without deciding what the plaintiff was entitled to recover of the defendant, and the same is so uncertain that it could not be enforced by legal judgment. Movant assigns error upon said verdict of the jury and judgment of the court, as being contrary to law."

A movant can not in a motion for new trial properly assign error on the judgment entered upon a verdict. Harper v.Perry, 190 Ga. 233 (9 S.E.2d 160). The record contains a statement that the first verdict "has been marked through and stricken." In view of what is in the record, the court refusing to accept the first verdict, the one they brought in on their return the second time must be treated as their verdict. Apparently no ruling of the court was invoked when the first verdict was delivered. The motion for new trial does not aver that the judge erred in refusing to receive the first verdict, or in directing the jury to return to their room; nor is complaint made that he gave them at any time any erroneous instruction. One searches in vain to find in this ground of the motion any complaint of any decision of the judge with reference thereto. Therefore it must be ruled that the only question presented is whether in a case of this character a verdict finding merely for the plaintiff is so uncertain and confusing that no legal judgment could be rendered thereon, and that therefore it should be set aside on motion. In a suit of the character of this one, when the only specific prayer is for injunction, and the jury as to the form of their verdict were instructed as indicated in headnote 9, it can not be held that the verdict should have been set aside for uncertainty. Construing it in the light of the pleadings, the issues made by the evidence, and the charge of the court, it is not uncertain.Gray v. Junction City Mfg. Co., 195 Ga. 33 (22 S.E.2d 847); Twilley v. Twilley, 195 Ga. 291 (24 S.E.2d 41).

Judgment affirmed. All the Justices concur.