Peters v. West , 70 Ga. 343 ( 1883 )

Jackson, Chief Justice.

This action was brought to recover land alleged to have been the property of the father of the plaintiffs, and in possession of which he died. The jury found for the plaintiffs against one of the defendants, George Peters, — the other, Hosea Peters, disclaiming title, — the premises in dispute and four hundred dollars mesne profits. A motion for a new trial was refused, and on that judgment refusing this motion, error is assigned here on the grounds taken in it.

1. There was no error in refusing to continue the case, on the facts disclosed in the record. Those facts showed gross laches in the defendant.

2. There was none in admitting the will in evidence. The objection was that one witness made his mark, and did not swear to the will, on the probate thereof before the ordinary. It was proved there in common form by the other witnesses, according to law, and was admissible (Code, §2423); and was conclusive, after seven years, against these parties. 46 Ga., 361, 9th head-note.

3. The dower proceedings were properly admitted. The widow occupied the land as dower, and that cured all irregularities, if any. 41 Ga., 42.

4. The court did not err in not continuing the case because of the amendment of the declaration. No allegation of surprise, or of being less prepared to try, was made. Code, §3521; 52 Ga., 129; 49 Ib., 170.

5. The declaration alleged that the land was in the 9th district of originally Payette, now Campbell county. The proof is to the effect that it was in the 9th militia district, but not land district. The court refused to non-suit plaintiffs on this ground, refused to rule out the testimony that it was the 9th militia district, and that everybody called it the old 9th of Payette, and refused to charge that if it was not in the 9th land district, but in another land district, though in the 9th militia, the plaintiffs could not recover; but charged to the contrary that, if the jury believed the land was the land sued for in the declaration, though a militia district was called the old 9th of Fayette, it being described simply as the old 9th, then plaintiffs could recover if they showed title to it. Error is assigned on these various phases of the same point. There is no error in the rulings thereon. The question was one of fact for the jury. It was, does the proof cover the lot sued for? That lot was in the old 9th of Fayette, now Campbell. If the jury believed that the declaration, not stating that it lay in a land district at all, meant the lot which was in the old 9th militia district and the proof showed this lot ■came up to that description, it was sufficient to make the allegata and probata agree substantially. The father of plaintiffs owned the lot. One witness swore that he had known it for fifty-two years, and it lay in the old 9th. The point, viewed in all its lights, it strikes us, is purely technical and without merit.

6. There was no error in ruling out testimony about the value of clearing the land by defendant to set off against mesne profits. The clearing was in the time of the life tenant and the holding under her. The evidence was not admissible. Dean et al., ex’rs, vs. Feeley et al., this term.

7. Objections to the admission of testimony must state the reasons or grounds thereof. All’the rest objected to, and some considered above, fall under this want of specification.

8. The evidence is sufficient to sustain the verdict; the presiding judge is satisfied therewith; and there being no material error of law, this court will not disturb the verdict and judgment.

Judgment affirmed.