Browse Caselaw

This court upon the first appearance of this case, Green v. Stafford, 206 Ga. 836, supra, reversed the order denying the defendant a new trial on the sole ground that the evidence demanded a finding against the plaintiff's contention that the defendant had acquiesced for a period of seven years in the boundary line between their respective lands. This did not constitute the first grant of a new trial; and accordingly, the order under review constitutes the first grant of a new trial, and comes within Code 6-1608, which provides that the first grant of a new trial will not be disturbed by this court unless the plaintiff in error shall show that the trial judge abused his discretion in granting it, and that the law and the facts required the verdict notwithstanding the judgment of the trial court. Kuhnen v. Postal Telegraph-Cable Co., 135 Ga. 390 (69 S. E. 554); Mitchell v. West End Park Co., 177 Ga. 449 (170 S. E. 376); Reese v. Baker, 197 Ga. 265(2) (29 S. E. 2d 412); Azar v. Thuma, 207 Ga. 444 (2) (62 S. E. 2d 166). We have examined the evidence and the record and, though the evidence in the last trial as to the acquiescence by the defendants in the boundary line was the same as the evidence on the first trial, there was additional evidence on the last trial as to the establishment by the oral agreement of the parties of the boundary line contended for by the plaintiff; and one of the special grounds of the amended motion for new trial was the failure of the court to charge the jury on the law as to the establishment of a boundary line by oral agreement between adjoining landowners and its subsequent execution by the parties. On this issue the evidence did not demand a finding in favor of the defendants.