Everett v. Berry

JONES, Justice:

This case involves the establishment of a land line. The Everetts were the complainants and Berry et al. were defendants. The suit was filed November 24, 1967. After various proceedings and more than one hearing, at which several different surveys and plats were introduced, the chancellor stopped the hearing and directed that the matter be passed to the file until a later date. The parties were given the option of presenting further evidence. After the chancellor had appointed a surveyor of his own and after the court-appointed surveyor had made his report, the chancellor on November 13, 1969, entered an order dismissing without prejudice the bill of complaint, the temporary injunction and the cross-bill. We can understand the frustration of the chancellor.

From this order dismissing both the bill of complaint and cross-bill without prejudice, all parties appeal and ask this Court either to determine the case or remand it. We are not original triers of fact and for that reason are remanding the case to the court below for its final decision. On the next hearing, the record now before us shall be considered as introduced and shall constitute a part of the record of said new hearing. The case is also to be reopened to permit any party to introduce any further or other evidence that he may have. The chancellor may call upon the parties for any additional evidence that he desires, and may, if he desires, appoint another surveyor or surveyors for the surveying of the land.

The costs of this appeal are taxed, one-half against appellants and one-half against appellees.

Reversed and remanded with directions.

GILLESPIE, P. J., and RODGERS, BRADY and SMITH, JJ., concur.