Cannon v. Yarbrough , 127 Miss. 186 ( 1921 )

Cook, J.,

delivered the opinion of the court.

Plaintiffs instituted an action of ejectment in the circuit court of Winston county, and from a judgment in their favor, defendant prosecuted this appeal.

This controversy grows out of the disputed location of a section line between the lands of the parties, and the first assignment of error is based upon the action of the court in excluding the testimony of the county surveyor who made a survey and location of the disputed section line after the institution of the suit. This testimony was excluded on the ground that the survey Avas made after the suit was brought and that no commission for that purpose was issued by the clerk of the court, and no notice served on plaintiffs, as provided by section 1828, Code of 1906 (Hemingway’s Code, section 1461). The exclusion of this testimony was erroneous, and must result in a reversal of this case.

It is not the purpose of section 1828, Code of 1906, to render inadmissible the testimony of surveyors in reference to surveys made after the institution of a suit, and which were not made in conformity with the provisions of this section. The true meaning and intent of this section is very clearly stated in Lenoir v. Bank, 87 Miss. 559, 40 So. 5, where Justice Truly, speaking for the court, said:

“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 rig’ht to recover the entire cost of the survey in the event he succeeds iii 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.”

There are numerous other assignments of error based upon the exclusion of testimony for the reason that defendant had not complied with a notice requiring him to file a bill of particulars of his claim or title to the premises. It appears from the record that this notice ivas in the form of a motion addressed to the court and filed among the papers in the canse, and that this notice or motion was not served on the defendant or his attorneys, and was in no way called to their attention, and that they had no knowledge of the existence of the motion until an objection was interposed at the trial. The defendant’s request for a de- ■ lay of one hour to enable him to comply with the motion was denied. Without expressly deciding the question of the sufficiency of this motion, and the service thereof, we think, under the facts in evidence here, appellant should be allowed to file this bill of particulars upon the remand of this cause.

Reversed and remanded.