Opinion
21681.
ARGUED JUNE 11, 1962.
DECIDED JUNE 25, 1962. REHEARING DENIED JULY 11, 1962.
Injunction, etc. Johnson Superior Court. Before Judge Ward.
Irwin L. Evans, Casey Thigpen, H. F. Tarbutton, J. W. Claxton, for plaintiffs in error.
Emory L. Rowland, Joe W. Rowland, contra.
1. There is no provision in law for setting aside a verdict except upon a motion for a new trial or a motion equivalent to a motion for a new trial, except as provided in Code § 6-804.
2. The variance between the description in the verdict and that in the judgment being an amendable defect appearing on the face of the record, it is not a valid ground for a motion to set aside the judgment.
3. On motion of the defendant in error a brief of evidence was certified and transmitted to this court. Since consideration of the evidence is unnecessary for a decision of the questions raised by the bill of exceptions, and since the judgment excepted to is affirmed, it is directed that by proper order of the trial court the defendant in error be required to pay the costs arising in connection with the brief of evidence.
ARGUED JUNE 11, 1962 — DECIDED JUNE 25, 1962 — REHEARING DENIED JULY 11, 1962.
This is a property-line dispute which arose out of Davis' having given to Palmer the right to cut timber on land which Davis thought was his. Howell, an adjoining landowner, on February 3, 1961, filed his petition alleging that the timber being cut by Palmer was on his land, and asking the court to decree the true location of the line, to enjoin Davis and Palmer from entering upon his land, and to grant other relief. Defendant Davis answered denying the material allegations of the petition. The case was submitted to a jury, which found for plaintiff as follows: "In the above-styled case, we the jury find the dividing line between W. H. Howell and Roger Davis to be as follows; and as shown on plat of survey made by John F. Barker, Surveyor, dated May 12, 1961: Beginning at a fence adjacent to Line #1 on said plat and following said fence until same reaches Line #5, on a line N 17.00 W, thence following Line #5 in a southwesterly direction to a sugarmaple tree; thence in a southerly direction in a straight line to a sycamore tree on the `High Bluff' of the Oconee river. By direction of the court no damages are awarded against the defendants. This 20th day of June, 1961. W. R. Jackson, Jr., Foreman." Upon this verdict the trial court entered judgment for plaintiff as follows: "Based upon the foregoing verdict it is decreed that the dividing line between the property of W. H. Howell and Roger Davis is as shown by the jury verdict and as marked on said plat and pointed out to the court by the jury as follows: Beginning at a fence adjacent to line 1 on said plat and following said fence until same reaches line 5 on a line W. [N.?] 17.00 W; thence following line 5 in a southwesterly direction to a sugarmaple tree; which point where said sugarmaple tree was pointed out is on a line N. 74:00 E. shown as line 5 (in the event said tree is off of said line then the point designated on the plat is hereby designated as a corner and said plat is made a part of this judgment); thence in a southerly direction in a straight line to a sycamore tree on the `High Bluff' of the Oconee river. Both the plaintiff and the defendant are permanently restrained and enjoined from crossing the said designated line or interfering in any manner with the other parties [sic] rights of ownership." On March 19, 1962 Davis and Palmer filed a "motion to set aside verdict and judgment" in two "counts," the first seeking to set aside the verdict on the ground that the locations of certain trees used by the jury in describing corners of the property line are so indefinite as to render the verdict void, and the second seeking to set aside the judgment on the ground that it is at variance with the verdict. To the judgment overruling both counts of this motion, Davis and Palmer excepted.
1. Count 1 of the motion seeks to set aside the verdict on the ground that it is too indefinite for enforcement. "There is no provision in law for setting aside a verdict except upon a motion for a new trial or a motion equivalent to a motion for a new trial, except as provided in the Civil Code (1910), § 6144 [now Code § 6-804]." Corr v. Corr, 213 Ga. 699, 700 ( 100 S.E.2d 922); Buchanan v. Nash, 211 Ga. 343, 344 ( 89 S.E.2d 637); McDonald v. Wimpy, 203 Ga. 498, 500 ( 46 S.E.2d 906); New York Life Ins. Co. v. Cook, 182 Ga. 409 ( 185 S.E. 711); Lovelace v. Lovelace, 179 Ga. 822 (1e) ( 177 S.E. 685). In the present case no motion for new trial was made, and Code § 6-804, which allows a party desiring to except to a verdict to dispense with a motion for new trial and proceed by direct bill of exceptions where the verdict "necessarily had been controlled" by the ruling to which exception is taken, is not applicable. The motion to set aside the verdict in the present case is, as referred to in the Corr case, supra, a "motion equivalent to a motion for new trial." Dollar v. Fred W. Amend Co., 186 Ga. 717 ( 198 S.E. 753), and cases cited therein. A motion to set aside a verdict based on matters not appearing on the face of the record is not an available remedy to avoid the verdict unless the motion is of such form and content as to be in substance a motion for a new trial and complies with the rules governing such a motion. Buchanan v. Nash, 211 Ga. 343, 344, supra; Dollar v. Fred W. Amend Co., 186 Ga. 717, supra; and cases cited therein. The motion in the present case is a motion to set aside the verdict for defects not appearing on the face of the record. Nothing appears on the face of the trial court record to show that there is more than one sugarmaple tree or more than one sycamore tree upon the land in question. It may be that the designated trees are the only ones of their species standing upon the land. In that event the verdict would be definite. Any indefiniteness as to the location of these trees would only appear, if at all, by reference to the brief of the evidence. However, a brief of the evidence is not a part of the face of the trial court record. DeCoff v. Newman, 79 Ga. App. 162 ( 53 S.E.2d 134). The motion in the instant case not having been made within 30 days of the rendition of verdict, as required by Code Ann. § 70-301 for motions for new trial, was not timely, and the trial court properly denied it.
2. Count 2 of the motion asks that the judgment be set aside on the ground that it is at variance with the verdict. A judgment may be set aside only for nonamendable defects on the face of the record or pleadings. Code § 110-702. A judgment may be amended by order of the court to conform to the verdict upon which it is predicated, even after execution issues. Code § 110-311. The judgment in this case varies from the verdict in two particulars. First, the verdict says "on a line N 17.00 W." while the judgment reads "on a line W. 17.00 W." Second, the judgment attempts to locate more accurately the sugarmaple tree by adding the following words not found in the verdict: "which point where said sugarmaple tree was pointed out is on a line N 74:00 E shown as line 5 (in the event said tree is off of said line then the point designated on the plat is hereby designated as a corner and said plat is made a part of this judgment)." The description of the property line in the judgment may be amended to conform to that in the verdict. Rucker v. Williams, 129 Ga. 828 ( 60 S.E. 155); Bank of Tupelo v. Collier, 192 Ga. 409 (1) ( 15 S.E.2d 499); Brown v. Cole, 196 Ga. 843, 845 (1) ( 28 S.E.2d 76). Since the variance between the description in the verdict and that in the judgment is an amendable defect appearing on the face of the record, it is not a valid ground for a motion to set aside the judgment. Code § 110-702. Therefore the trial court did not err in denying the motion to set aside the judgment.
3. On motion of the defendant in error a brief of evidence was certified and transmitted to this court. Since consideration of the evidence is unnecessary for a decision of the questions raised by the bill of exceptions, and since the judgment excepted to is affirmed, it is directed that by proper order of the trial court the defendant in error be required to pay the costs arising in connection with the brief of evidence. Code § 6-810 (2); Pope v. United States Fidelity Guaranty Co., 193 Ga. 769, 770 (7) ( 20 S.E.2d 13).
Judgment affirmed with direction. All the Justices concur.