Lenoir v. People's Bank , 87 Miss. 559 ( 1905 )

Truly, J.,

delivered the opinion of the court.

The assignment of error based upon the action of the court in permitting the introduction of the map, because it embodied a survey made after the institution of the suit without notice to opposing parties, arises from an entire misconception of the true meaning and intent of Code 1892, § 1653. That section simply gives to either party to a suit in ejectment the right to have a survey made of the premises in controversy under a commission, with certain attendant formalities, and gives him the right to recover the entire cost of the survey in the event he succeeds in the action and “the judgment be that the survey was necessary in deciding the issue.” But that section is not intended to abridge or in any wise modify the generally accepted rules of evidence under which any party litigant may introduce maps of the premises and the testimony of the surveyors, by whom the survey' was made, explanatory thereof. This assignment of error is without merit.

The only other ground assigned in the motion for a new trial is alleged error in the finding of the trial judge who presided, a jury having been waived, upon the evidence. Accepting as true the map which was introduced in evidence upon the trial, we are unable to decide with certainty that the decision of the court is contrary to the weight of testimony. In this state of case, under well-established principles, the finding of' the trial court is protected by the general presumption of correctness.

The judgment is affirmed.