McDonald v. Wimpy , 203 Ga. 498 ( 1948 )

1. The brief of the evidence having been corrected to meet the objections of the petitioner except in unimportant and harmless respects, the court did not err in approving the brief of the evidence and in refusing to set aside the approval and in not dismissing the motion for new trial.

2. Whether or not the verdict for the petitioner was authorized, such verdict was not demanded, since there was testimony for the defendant which raised an issue for the jury as to whether or not the requisite adverse possession for seven years under color of title had been shown. Accordingly, the new trial granted the defendant, being the first grant to him, will not be disturbed.

No. 16053. FEBRUARY 11, 1948. REHEARING DENIED MARCH 19, 1948. J. C. McDonald filed in the Superior Court of Lumpkin County, Georgia, an equitable petition against Ernest F. Wimpy, alleging his ownership and possession of "land lot 1131 in the 12th district, 1st section, of originally Cherokee, now Lumpkin, County, Georgia, containing forty acres, more or less," and praying for an injunction against trespass, for a decree of title, and for general relief. After a direction of a verdict for the defendant, this court upon review reversed the judgment overruling the petitioner's motion for new trial. McDonald v.Wimpy, 202 Ga. 8 (41 S.E.2d 257). In the opinion of the court it was ruled that the sheriff's deed upon which the petitioner relied as a conveyance of title was only color of title, because the evidence showed that the deed was made pursuant to a levy by a constable of a tax fi. fa. exceeding $100 in the principal amount, but that prescriptive title might be based thereon. It was further held that the evidence would have authorized a verdict for the petitioner, and, hence, the trial court erred in directing a verdict for the defendant.

Upon the last trial it was stipulated that both parties claimed under Standard Gold Mining Company, the petitioner claiming by prescription. The evidence as to the petitioner's possession was conflicting, and on that issue was substantially the same as on the first trial. The jury returned a verdict for the petitioner. Upon motion by the defendant the court granted him a new trial, and the petitioner excepted, the assignments of error being referred to hereinafter.

After the presentation of a brief of the evidence by the defendant in connection with his motion for new trial, the petitioner made certain written objections to the proposed brief of the evidence, praying that in the absence of corrections as sought the proposed brief of the evidence be disapproved and the motion for new trial dismissed. A number of objections having been met by the defendant, the court overruled all other grounds of objection and approved the brief of the evidence. Thereupon the petitioner moved to set aside the approval. The court, after stating that all meritorious objections had been met, did not formally act upon the motion to set aside the approval of the brief of the evidence, but granted a new trial to the defendant. Error is assigned on the judgment overruling the objections not met by the defendant, the judgment approving the brief of the evidence, the refusal of the court to set aside the approval of the brief of the evidence, and the refusal to dismiss the motion for new trial, it being contended that such alleged antecedent errors necessarily entered into, affected, and controlled the judgment granting a new trial, upon which error is assigned as being an illegal termination of the cause. Error is also assigned upon the judgment granting a new trial as being inherently invalid because not authorized by the evidence. 1. The new trial here granted was the first grant of a new trial to the defendant, and comes within the rule that it will not be disturbed unless the evidence demanded a verdict in favor of the opposite party. Jordan v. Dooly, 129 Ga. 392 (58 S.E. 879); Mitchell v. West End Park Co., 177 Ga. 449 (170 S.E. 376). Before determining whether or not the evidence demanded a verdict in favor of the petitioner, however, it is necessary to examine the petitioner's objections to the brief of the evidence presented by the defendant, for the following reasons. A jury's verdict can not be set aside by the trial judge on his own motion, but only upon a motion for new trial or a motion equivalent to a motion for new trial, except as provided in the Code, § 6-804, and not applicable here where the legality of the verdict itself is directly challenged. Lovelace v.Lovelace, 179 Ga. 822, 827 (177 S.E. 685); New York LifeInsurance Co. v. Cook, 182 Ga. 409 (185 S.E. 711), and citations. A correct brief of the evidence is essential to the validity of a motion for new trial. Pendergrass v. Duke,140 Ga. 550, 552 (79 S.E. 129); Groves v. Groves, 177 Ga. 768 (171 S.E. 261); Dollar v. Fred W. Amend Co., 186 Ga. 717 (198 S.E. 753); Roberson v. Roberson, 199 Ga. 627 (1) (34 S.E.2d 836). It is the duty of the trial judge to make the brief of the evidence correct before ordering it filed as a part of the record. Cochran v. Cochran, 85 Ga. 678 (8) (11 S.E. 811). Where the judge improperly approves a brief of the evidence, direct exception may be taken to the order of approval over objection, or a motion may be made to vacate the order of approval, and if refused direct exception may be taken thereto.Mann v. Tallapoosa St. Ry. Co., 99 Ga. 117 (24 S.E. 871);Murray v. Davidson, 174 Ga. 213, 219 (162 S.E. 526). To the brief of the evidence presented by the defendant the petitioner filed a written motion that it be disapproved unless corrected in thirty named respects. After all objections which the court considered meritorious had been met by changes in the brief of the evidence, the court denied the motion to disapprove the brief of the evidence, refused to set aside the approval when entered, and refused to dismiss the motion for new trial. Since error is assigned thereon, and a correct brief of the evidence is, as stated above, essential to the validity of a motion for new trial, it has been necessary to examine the petitioner's objections to the brief of the evidence because, if meritorious, any error in disregarding them would vitiate the grant of the motion for new trial. Without setting forth the objections not met by changes in the brief of the evidence, we deem it sufficient to state that they have all been carefully examined, but are not of such nature or merit as to require any further changes in the proposed brief of the evidence. It follows that the court did not err in approving the brief of the evidence, in refusing to set aside the approval, and in not dismissing the motion for new trial. Hence, the grant of a new trial to the defendant, being the first grant in his favor, will not be disturbed unless it be found upon the inquiry now to be made that the verdict in favor of the petitioner was demanded under the law and the evidence.

2. It was held by this court on the former appearance of the case here that the evidence did not demand a verdict for the defendant, and would have authorized a verdict for the petitioner. Without setting out the voluminous evidence adduced on the last trial, it is sufficient to say that it was conflicting on the issue of the possession of the petitioner, and was substantially the same in that respect as on the first hearing. The defendant, however, introduced on the last trial a record of certain proceedings in the Superior Court of Lumpkin County, Georgia, including a judgment entered on April 20, 1934, to the effect that the petitioner had no title to the lot in question. Because of this evidence it is insisted by the defendant in error that it should be held that a verdict was demanded in his favor and that the verdict for the petitioner was unauthorized. In determining, however, whether or not the first grant of a new trial of the defendant was authorized, it is not necessary to consider whether or not a verdict was demanded in his favor, the only inquiry being whether or not the verdict in favor of the petitioner was demanded. Whether or not the verdict for the petitioner was authorized, such a verdict was not demanded, since there was testimony for the defendant which raised an issue for the jury as to whether or not the requisite adverse possession for seven years had been shown. The new trial granted the defendant, being the first grant to him, will, accordingly, not be disturbed.

The petition alleged that the petitioner furnished money to the defendant to buy material for a fence for the petitioner's pasture, and that with the money the defendant purchased the necessary wire to pasture his livestock on the petitioner's land and thus became his tenant for the year 1944, that he never erected the fence, but on the contrary ceased to attorn to him as his landlord but is estopped from so doing. The evidence showed that the petitioner paid for some wire, which was sent by the storekeeper to the defendant, but does not show that he used it or did any act in subordination to the right of the petitioner, but shows that the wire was subsequently obtained by or returned to the seller. In fact, the petitioner testified: "He never did build a fence on lot 31 for me, never did use that wire. . . . I don't guess he went into possession under me." No estoppel was shown.

Judgment affirmed. All the Justices concur, except Bell, J.,absent on account of illness, and Wyatt, J., who took no partin the consideration or decision of this case.