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WHALEY v. ELLIS et al.
Boundaries; from Murray Superior Court-- Judge Paschall. March 13, 1952.
Waymon and Ruby Ellis filed suit in the Superior Court of Murray County against Mrs. J. M. Whaley. The petition was brought in two counts alleging: that the defendant was committing a continuing trespass by reason of locating and maintaining a fence upon land belonging to petitioners to which they have legal title and of which they have been in continuous possession for more than forty years, until the erection of the fence. The disputed area thus cut off is a strip 30 feet wide and 600 feet in length. Paragraph 6 of count 2 states as follows: "Plaintiffs show that the east line between these plaintiffs and this defendant is the north and south original line of lot no. 77 in the 9th district and 3rd section of Murray County, Georgia." This paragraph was admitted by the defendants. A rule nisi issued against the defendants, and upon the hearing thereof the parties entered into the following agreement which was made the judgment of the court: "Upon agreement of the parties in open court R. E. Smith is appointed to locate the north and south line between the lots no. 77 and 78 at issue in this case and make his report to this court and the parties hereto are to be bound by said survey and the survey is to be the line between the property of these parties. Costs of survey to be borne by each equally." This judgment was signed by the court and approved by the signature of counsel for plaintiffs and defendant. Pursuant thereto, R. E. Smith surveyed the disputed land line, made a plat, and filed a copy of the same with his sport in the office of the clerk of court. The trial court thereupon entered a final judgment as follows: "It appearing to the court that R. E. Smith, the appointed surveyor in the foregoing agreement, having made his report to this court, it is therefore considered, ordered and adjudged that the line as established by the said R. E. Smith between lots no. 77 and 78 is hereby made the judgment of this court, and the clerk of this county is hereby directed to issue a writ of possession directed to the sheriff of said county commanding him to place the plaintiffs in possession of the property as shown by the survey made by R. E. Smith which is of file in the office of the clerk of this county, and also that the defendant be required to pay the costs of the case and the costs of this writ of possession."
On the same day, and before the entry of this judgment, the defendant offered in evidence an affidavit of her mother and her own testimony to the effect that the north-south dividing line of the property had always been recognized as running on a line parallel with the line shown in the survey but 15 feet to the west; that the fence was located on this line; that R. E. Smith had first surveyed the line along the fence, which was the correct line, but that two weeks later he had returned and measured over 15 feet east of the fence, and had told the defendant "that was the line between Waymon Ellis and me, but if he were me he would hold to the line that had been agreed on from my childhood."
Error is assigned on the judgment of the court on the ground that the case should have been remanded to a jury and the surveyor's report introduced in evidence; subject to objections as provided by law.
(After stating the foregoing facts.) Code 7-224 provides as follows: "In all matters submitted to arbitration by parties in a suit, under a rule of court, or other agreement in writing signed by the parties (except as hereinbefore provided) judgment shall be entered up by the party in whose favor the award is given, and execution shall issue for the sums awarded to be paid as they respectively become due, and to be levied on the property of the party against whom the judgment shall have been entered up, and such other proceedings shall be had thereon by the court as in cases of judgments entered upon verdicts of juries."
This Code section is a part of the Judiciary Act of 1799, and is separate and distinct from the Arbitration Act of 1856 (Code, 7-201 to 7-223 inclusive). Culbreth v. Smith, 202 Ga. 102 (2) (42 S. E. 2d, 432). The proper procedure under Code 7-224, where in a case pending in court the controlling issue has been referred to an arbitrator to determine by consent of the parties under an order of court, is, upon the return of such award, to make a motion that it be made the judgment of the court in the case, and if any exceptions are made they should then be considered and decided before further action is taken. If there are no exceptions vitally affecting the award, the motion should be granted and judgment entered according to the award. King v. Davidson, 69 Ga. 708 (a). It does not appear from the record that no proper motion to enter up judgment was made, but it does affirmatively appear that prior to entering up judgment the defendant introduced evidence and the case was argued. No exceptions were filed to the survey or the report thereof, and the only assignment of error in the bill of exceptions is as follows: ". . . to which said judgment granting the line as established by R. E. Smith to become the judgment of the court the defendant then and there excepted and now excepts and assigns the same as error as being contrary to law and the evidence in the case, and says that the said judge then and there should have remanded the case to a jury with the report of the said R. E. Smith to be introduced in evidence, subject to objections, and as provided by law." The judgment of the court was not contrary to law for any reason assigned. As stated in Tison v. Sellars, 40 Ga. 710, 713: "Although it is not expressly stated in the submission in this case that it was of the matters in controversy in a pending suit, yet it is a fair inference from the recital and the award that such was the fact. Section 4190 of the Revised Code [Code 7-224] permits the reference of any such matters, either by order of court or other agreement, in writing, and makes no special provision as to the number of arbitrators, or as to the mode of proceeding." The order of court here expressly stated that the parties agreed to be bound by the survey, and the line as established by the survey and report would be the line between the property of the parties. This was the only issue in the case. Further, it was admitted by the pleadings of both parties that the true line between them was the original land lot line between land lots 77 and 78. No exception was made to the survey on the ground that it did not properly locate this original land lot line, and the plaintiff's evidence merely tends to show another dividing line as established by possession and acquiescence. It follows therefore that no valid objections were raised to the surveyor's report. The assignment of error in the bill of exceptions that the case should have been remanded to a jury is without merit under the express provision of Code 7-224 that ". . . judgment shall be entered up by the party in whose favor the award is given . . .
and such other proceedings shall be had thereon by the court as in cases of judgments entered upon verdicts of juries."
Counsel for the plaintiff in error relies principally upon Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 (24 S. E. 2d, 59) and Clare v. Drexler, 152 Ga. 419 (12) (110 S. E. 176). In both these cases it is expressly pointed out that the parties, in agreeing to submit the case to a surveyor for the purpose of running a line, did not submit the issues to him as an arbitrator or umpire, and did not agree to be bound by the results of the survey. These cases, therefore were not submitted for arbitration under the provisions of Code 7-224. Both cases, however, indicate that where, as here, parties to a suit agree to abide the result of such survey, they will be bound thereby.
The trial court did not err in entering up final judgment in favor of the plaintiffs.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
Mitchell & Mitchell, contra.
J. Paxson Amis, for plaintiff in error.
Saturday May 23 05:10 EDT

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