Townsend v. Rechsteiner , 195 Ga. 618 ( 1943 )

1. "The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error will show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge." Code, § 6-1608.

2. While a judgment overruling a general demurrer to a petition, unless excepted to and reversed, will constitute an adjudication that the petition states a cause of action, and that on proof of its allegations the plaintiff will be entitled to recover, it does not determine what evidence will prove the allegations, or that any particular evidence will demand a finding in favor of the plaintiff. Code, § 110-104; Turner v. Willingham, 148 Ga. 274 (2) (96 S.E. 565); Allen v. Schweigert, 113 Ga. 69 (2) (38 S.E. 397).

3. Nor will the refusal either to award a nonsuit or to direct a verdict in favor of the defendant constitute an adjudication that the evidence demands a verdict in the plaintiff's favor. As to refusal of nonsuit, see Code, § 110-310; Smith v. Floyd County, 85 Ga. 420 (11 S.E. 850); Hendrick v. Clonts, 91 Ga. 196 (17 S.E. 119); McIver v. Florida Central Peninsular Railroad Co., 110 Ga. 223, 225 (36 S.E. 775, 65 L.R.A. 437). As to refusal to direct a verdict, see Binion v. Georgia Southern Florida Railway Co., 115 Ga. 330 (41 S.E. 646); Rivers v. Atlanta Southern Dental College, 187 Ga. 720 (1 S.E.2d 750).

4. "A plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of the defendant's title." Code, § 33-101.

5. Where in a complaint for land the plaintiff relied on a chain of title beginning with a grant from the State, issued in 1830, to "Jesse Hatcher's Orphans, of Walden's District, Jefferson County," followed by a deed executed in Jefferson County on July 4, 1842, by Spencer Wooten, John Davidson, Solomon Hatcher, Malaney Hatcher, and James M. Hatcher, as grantors, to Charles B. Leitner as grantee, purporting to convey the same lot of land, and further describing it as the land "originally granted to the orphans of Jesse Hatcher," and recorded in 1882: held, that the names and the other enumerated circumstances would not, without extraneous proof, demand a finding that the grantors in such deed were the orphans of Jesse Hatcher, to whom the land had been granted by the State; and for this reason, if not for others, the verdict for the plaintiff was not demanded on her claim of paper title. Code, § 38-304; Hicks v. Ivey, 99 Ga. 648 (26 S.E. 68); Dixon v. Monroe, 112 Ga. 158 (3) (37 S.E. 180); Lanier v. Hebard, 123 Ga. 626 (2) (51 S.E. 632); Sammons v. Nabers, 184 Ga. 269 (191 S.E. 124).

6. Nor did the evidence demand a finding for the plaintiff on her claim of prescriptive title.

7. "If the verdict was not demanded by the law and the evidence, the Supreme Court will not disturb the first grant of a new trial, though it was put upon a single ground; nor will it determine whether the trial court was right in granting the motion on the special ground." Mock v. Savannah Statesboro Railway Co., 122 Ga. 385 (50 S.E. 121); Cox v. Grady, 132 Ga. 368 (64 S.E. 262); Murray v. Davidson, 174 Ga. 213 (2) (162 S.E. 526); Glenn v. Tankersley, 187 Ga. 129 (200 S.E. 709).

8. Under the rulings stated above, the first grant of new trial can not be disturbed by this court; and this is true regardless of other questions argued.

No. 14384. FEBRUARY 11, 1943. REHEARING DENIED MARCH 11, 23, 1943. Mrs. Marion S. Townsend brought an action against C. U. Rechsteiner, to recover land and mesne profits. The suit was in the statutory form, and the petition as amended alleged title in the plaintiff (1) by chain of title from the State, and (2) by twenty years adverse possession by plaintiff and her predecessors in title. A general and special demurrer to the petition was overruled after an amendment had been filed by the plaintiff, and no exception was taken to this ruling. On the trial, after the plaintiff had introduced evidence and rested, the defendant moved for a nonsuit, which the court refused. After introduction of evidence by both parties had been concluded, the judge overruled a motion of the defendant for a directed verdict in his favor. The jury found in favor of the plaintiff. The defendant moved for a new trial on the general grounds, and by amendment added a ground complaining of a ruling admitting in evidence, over stated objections, one of the deeds on which the plaintiff relied, being the first deed after the grant from the State, as hereinafter stated. The judge ordered "that a new trial be and the same is hereby granted, and the motion for new trial as amended is hereby sustained." To this judgment the plaintiff excepted.

The case presents an instance of the first grant of a new trial, and some reference to the evidence will therefore be made. The grant from the State was made in 1830 to "Jesse Hatcher's Orphans of Walden's District, Jefferson County." The next link in the plaintiff's chain was a deed executed in Jefferson County in 1842, by Spencer Wooten, John Davidson, Solomon Hatcher, Malaney Hatcher, and James M. Hatcher, purporting to convey the same lot to Charles B. Leitner, and referring to it as the lot "originally granted to the Orphans of Jesse Hatcher," and recorded in 1882. The petition as amended alleged that these grantors were the orphans of Jesse Hatcher, but there was no extraneous evidence to this effect, the plaintiff depending on "concordance of names" and the other circumstances shown by the deed itself. Next were three deeds to the plaintiff as grantee, each conveying grantor's "undivided interest [in the lot of land in controversy], bequeathed to grantor and others by the will of Charles B. Leitner, recorded in will book ``A' pages 254 and 255 in probate court of Bullock County, Alabama, Nov. 8, 1897." These deeds were executed in January, 1931, the first being by Mrs. Homer M. Howard, the second by Mrs. Jessie A. Hollingsworth, and the third by Mrs. Flora C. Redd, as grantors. The petition alleged that these three grantors were daughters of Charles B. Leitner; and that while he had devised this land to them and to his wife and his son John, the wife and son had predeceased him, leaving these three grantors as his sole surviving heirs and legatees. The evidence showed that the wife and son had predeceased Charles B. Leitner, as alleged, but it further appeared from the evidence that he married a second time, and that his second wife survived him. The abstract attached to the petition and expressly made a part of it referred to a will of Charles B. Leitner, recorded in the State of Alabama, as one of the muniments of title; but a certified copy as offered in evidence was excluded on objection of the defendant, on the ground that the will appeared to have been executed in the presence of only two subscribing witnesses. The plaintiff did not except to that ruling.

The plaintiff contends in this court that even under the true law the evidence demanded the verdict in her favor; but she also contends that regardless of this question, the antecedent rulings, namely, the overruling of a general demurrer to the petition, the refusal to grant a nonsuit, and the further refusal to direct a verdict in favor of the defendant, each constituted an adjudication in her favor, and so determined the law of the case that under the pleadings and the evidence the verdict in her favor was demanded. For these reasons, she contends that the court erred in granting even a first new trial.

There is no merit in the contention relating to the law of the case, under the facts of the record. Nor did the evidence otherwise demand the verdict in the plaintiff's favor. As to paper title, the evidence did not show conclusively and as a matter of law that the grantors in the first deed after the grant from the State were the persons to whom the land was granted; and for this reason the verdict as returned was not demanded, whether or not it may have been authorized. Nor was the evidence such as to require a verdict in the plaintiff's favor upon the theory of prescriptive title by adverse possession for twenty years, as alleged in her petition. It follows that the judgment granting the first new trial can not be disturbed by this court.

Since the judge has granted a new trial, thus indicating that he desires to deal with the case again, we go no further than to show that he may lawfully do so. Compare Fenn v. New OrleansMutual Insurance Co., 53 Ga. 578 (2); Haynie v. Watson,70 Ga. 707; Swint v. Central Railroad, 75 Ga. 888. Accordingly, no ruling is made in reference to the subsequent deeds under which the plaintiff claims, or the extraneous evidence relating to them. The legal principles and authorities on which we mainly base our decision are indicated in the headnotes, which do not require further elaboration.

Judgment affirmed. All the Justices concur.