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Lawskills.com Georgia Caselaw
OVERSTREET v. DIXON.
40060.
Processioning, etc. Tattnall Superior Court. Before Judge Durrence.
BELL, Judge.
1. Where the protestant to a processioners' return was also the applicant seeking the processioning of land, the applicant protestant has the burden of establishing a prima facie case for the processioners' return. The return and the county surveyor's plat are essential to a prima facie case. The trial judge did not err in granting a nonsuit where the applicant failed to present in evidence the return and the plat where neither otherwise appeared in the evidence.
2. It was not harmful error for the trial judge, after granting a nonsuit, to refuse to reopen the case for admission of evidence which could not have altered the lawful result of the issue.
3. (a) Where a party's own evidence is contradictory and uncertain as to the material allegations of his petition, the court on motion for nonsuit should construe the evidence most strongly against him.
(b) A survey is defined as the process by which a parcel of land is measured and its contents ascertained; also a statement of, or a paper showing the result of the survey, with the courses and distances and the quantity of the land.
(c) Under Code 24-3384 a survey may be placed in evidence by oral testimony of the surveyor describing the process by which he measured the land and by stating the courses and distances and the quantity of the land, or by offering a duly authenticated paper showing the results of the survey.
H. M. Overstreet, the applicant-protestant in the lower court, is the plaintiff in error in this proceeding. Overstreet applied to the processioners for Militia District No. 1376 of Tattnall County, Georgia, to locate and mark anew the boundary line between his lands and those of R. A. Dixon. The return of the processioners, with the county surveyor's plat attached, showed the dividing line as beginning at a stake corner agreed upon by Overstreet and Dixon, extending south 36 degrees west for 11.8 chains to a stake corner and thence south 4 degrees west for 90 chains to a stake corner. In his protest, Overstreet denied that the processioners' line was the true line. He also contended in his amended protest that the true line beginning from the same point should have extended south 40 degrees west for 11.86 chains to a corner and thence south 5 degrees 35 minutes west for 89.55 chains to a corner.
In support of his protest, plaintiff introduced: a certified plat dated 1910; his own testimony and that of a neighbor; and evidence of another survey performed in 1961 without prior notice to Dixon and after the processioning. Counsel for the defendant objected to the admission of the 1961 plat but did not object to the oral testimony given by the surveyor.
After plaintiff, as the applicant-protestant, rested, the defendant moved to dismiss on the grounds that, (1) the applicant-protestant had failed to introduce the return of the processioners and the plat of the county surveyor and that, (2) plaintiff had introduced no evidence to show sufficiently the location of the line as claimed by the plaintiff. After the trial judge indicated that he would grant a nonsuit, the plaintiff moved to reopen his case to introduce the processioners' return and the county surveyor's plat for the purpose of illustrating the issue in the case.
The court denied the motion to reopen. The nonsuit was granted. Within the time allowed by law, plaintiff filed a motion to reinstate the case, accompanied by a brief of the evidence. The court heard argument on both sides and overruled the motion to reinstate.
To each of the rulings of the trial court the plaintiff excepted and assigns error.
1. The plaintiff in error had dual burdens in this case which were cast upon him, (1) as applicant for processioning and, (2) as protestant against the boundary line drawn anew by the processioners. The burden of establishing a prima facie case for the processioners' return rested upon the plaintiff in error in his character as applicant. Woodcock v. Rayonier, Inc., 97 Ga. App. 133 (102 SE2d 93). The processioners' return and the county surveyor's plat are essential to a prima facie case, and, in the absence of any other evidence, would authorize a verdict sustaining the return. Rattaree v. Morrow, 71 Ga. 528; Castleberry v. Parrish, 135 Ga. 527 (69 SE 817); Georgia Talc Co. v. Cohutta Talc Co., 140 Ga. 245 (78 SE 905); Reynolds v. Kinsey, 50 Ga. App. 385 (178 SE 200); Philpot v. Wells, 69 Ga. App. 489 (26 SE2d 155). The failure or refusal of the plaintiff in error, as the applicant for processioning, to introduce the processioners' return and the county surveyor's plat clearly authorized the trial judge to grant a nonsuit at the close of his case.
This case differs from that of Crowley v. Varn, 90 Ga. App. 646 (84 SE2d 89), and others similar where the defendant, apparently to show the incorrectness of the boundary line as claimed by the applicant-protestant, voluntarily assumed and carried this burden imposed on the ocher by presenting in evidence the processioners' return and the county surveyor's plat.
2. The trial judge may exercise discretion in ruling on a motion to reopen to admit additional evidence. However, it is generally understood that a party should be allowed to reopen to introduce evidence sufficient to cure a nonsuit. Walker v. Central of Ga. R. Co., 47 Ga. App. 240 (170 SE 258); and Penn v. Georgia Sou. &c. R. Co., 129 Ga. 856 (60 SE 172). Here, if the trial judge had merely refused to permit the introduction of the processioners' return and the county surveyor's plat, which were needed to cure the defects in the applicant's case, as the trial judge himself apparently recognized, he would have abused his discretion. However, the trial judge's refusal to reinstate plaintiff in error's case went beyond the mere refusal to reopen in order to allow the admission of this evidence. The refusal to reinstate was directed at the failure of the plaintiff in error to prove his case in his character as protestant against the processioners' findings. The court correctly stated in its order denying plaintiff's motion to reinstate that if the return of the processioners and the county surveyor's plat had been introduced into evidence, "this evidence taken in connection with and in addition to the evidence already before the court and jury, would not have entitled the protestant to recover in this case."
It was not harmful error for the trial judge after the nonsuit to refuse to reopen the case for the admission of evidence which could not have altered the lawful result of the issue.
In this case, the evidence which the plaintiff in error introduced as protestant is contradictory and in conflict with the allegations made in his protest. The protestant denied that the processioners' line was the true boundary and contended that the true line beginning at an agreed point should have extended south 40 degrees west for 11.86 chains and thence south 5 degrees 35 minutes west for 89.55 chains to a corner. In support of his alleged true boundary, he introduced the oral testimony of a surveyor and plat prepared by this surveyor based on a survey made in 1961 after the processioning proceedings and without prior notice to the other coterminous owner, Dixon. The 1961 plat was admitted over the objection of the defendant in error on the ground that he was not given the 10 days' prior notice required by Code 24-3384 to qualify the survey for admission as evidence. Plaintiff in error admitted that no notice was given to Dixon. No objection was interposed, however, to the oral testimony of this surveyor who testified as to the result of his acts in conducting the survey and who gave the courses and distances found.
As we define a survey it is the process by which a parcel of land is measured and its contents ascertained; also a statement of, or a paper showing the result of the survey, with the courses and distances and the quantity of the land. See Black's Law Dictionary (4th Ed.), and Miller v. Lawyers Title Ins. Corp. (D.C. Va.), 112 FSupp. 221, 224. A survey, then, may be shown, (1) by oral testimony of the surveyor describing the process by which he measured the land and by stating the courses and distances and the quantity of the land, or (2) by offering a duly authenticated paper showing the results of the survey. The sustaining of an objection to either one of these methods of introducing the survey, yet allowing its submission by the other method without objection, results in the survey being properly in the evidence.
It necessarily follows that the surveyor's oral testimony of the 1961 survey properly places that survey in the evidence. This testimony, however, does not aid the plaintiff in error, for it is in direct conflict with a certified plat dated 1910 also introduced by him. The 1910 plat deviates only slightly from the line run by the processioners but is in direct conflict with the boundary alleged by the plaintiff's protest. In addition, there are fundamental contradictions within the plaintiff in error's testimony concerning his own recollection of boundary markers.
In the light of these conflicts in the protestant's own evidence, the trial court did not err in granting a nonsuit, in refusing to reopen plaintiff's case to admit the processioners' return and the county surveyor's plat, or in denying the motion to reinstate the protest proceedings.
Judgment affirmed. Carlisle, P. J., and Hall, J., concur.
D. B. Dubberly, Sr., R. K. Girodeau, T. Ross Sharpe, contra.
John P. Rabun, M. W. Eason, Dan S. Cowart, for plaintiff in error.
DECIDED MAY 24, 1963.
Friday May 22 22:26 EDT


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