Cherokee Ochre Co. v. Georgia Peruvian Ochre Co.

Hill, J.

1. The defendants filed demurrers, general and special, to the original petition, which were sustained. On writ of error to this court, that judgment was reversed. Thereafter petitioners filed an ancillary petition, and the defendants again filed demurrers on numerous grounds. Substantially all of the grounds of the latter demurrer were included in the original demurrer, and are controlled by the ruling made when the ease was formerly before this court. In some instances the language of the latter demurrer is identical with that of the former demurrer. In other instances the language is different, but the same question is raised. In still other instances, the grounds of the latter demurrer are so vague and indefinite as to present no question for determination. The latter demurrer is without merit, and the court did not err in overruling the same.

2. The court did not err in appointing an auditor. In equity cases the judge may, upon his own motion, when in his judgment the facts and circumstances of any such case require it, refer the same to an auditor. Civil Code (1910), § 5127.

3. The fourth ground of the amended motion for new trial amounts to an elaboration of the general grounds.

4. The fifth ground of the motion for new trial is without merit.

5. While in ground 6 of the motion for new trial movants complain that the charge permitted the jury to find against both parties, movant does not insist that the jury did so find. In order for the ground to have any merit it should show that movant was injured. The judge in the general charge instructed the jury that .they might, under the evidence, find in favor of another land line than the one they did find as the true line.

6. The matter as set out in ground 7 was not requested, and besides it was not a proper charge, and the court did not err in failing to so charge.

7. Complaint is made of the judge’s charge with reference to the Brooke line. The exception to this charge is without merit.

8. Ground 9 of the motion for new trial, which assigns error because of the failure of the court to charge with reference to the apportionment of acreage, is without merit.

9. Ground 13 of the motion for new trial complains of the following charge of the court: “Natural landmarks, being less liable to change, and not capable of counterfeit, shall be the most conclusive evidence; ancient or genuine landmarks, such as corner station or marked trees, shall control the course and distances called for by the survey. If the corners are established, and the lines not marked, a straight line, as required by the plat, shall be run.” This charge is adjusted to the facts of the case, and is in the language of the Civil Code of 1910, § 3820; and the exception is therefore without merit.

Nos. 5206, 5207. September 11, 1926. Rehearing denied September 29, 1926.

10. Grounds of the motion for new trial not specifically dealt with are without merit, or are covered by the rulings made on other assignments.

11. The verdict is authorized by the evidence.

Judgment affirmed. Cross-Mil dismissed.

All the Justices concur. G. H. Aubrey and John T. Norris, for Cherokee Ochre Co. Neel & Neel, contra.