Opinion
19745.
ARGUED JUNE 10, 1957.
DECIDED JULY 3, 1957.
Equitable petition. Before Judge Brooke. Cherokee Superior Court. April 19, 1957.
A. J. Henderson, Marion T. Pope, Jr., for plaintiff in error.
William Butt, Herman J. Spence, John S. Wood, contra.
So far as either count of the petition in the instant case alleges any cause of complaint against the defendant named therein, the same could have been asserted just as effectually by way of defense or cross-action in their protest to the processioners' return; this being true, neither count of the petition shows any necessity for an independent suit in equity, and the court erred in not sustaining the general demurrer and dismissing the petition on this ground.
ARGUED JUNE 10, 1957 — DECIDED JULY 3, 1957.
The petition in this case, which was brought in two counts, alleges in substance the following facts: The plaintiffs own the northern part of lot 656 in district 2, section 2, of Cherokee County, and the defendant owns the southern part of the same lot. A dispute arose respecting the location of their dividing line. They and the land processioners of their district met for the purpose of locating and marking it anew, though no formal application therefor had been made to the processioners by anyone. From information furnished largely by the defendant, the dividing line was located and agreed to by the parties. It ran in a southeast direction from an iron stake on the west original line of the lot to a rock corner on its east original line. The parties, together with the processioners, marked it by driving stakes in the ground at short distances apart. Before they left the premises, one of the processioners, R. H. Garrett, who was also a justice of the peace, suggested that their oral agreement respecting the line should be reduced to writing. His suggestion was adopted by the parties and he then and there wrote the following: "We the undersigned landowners of land lot 656 in the 15-2 district do hereby agree to line established by land processioners beginning at one iron stob on west side of lot and running due cast to rock on cast side of said lot." It was signed and sworn to by all of the parties before R. H. Garrett, J. P., on February 29, 1956, the day during which the line was located, agreed to, and marked with stakes. On March 7, 1956, the defendant filed a formal application with the land processioners who had participated in establishing the line between the parties to locate and mark anew the boundary line between his land and that of the plaintiffs. The processioners, other than R. H. Garrett, together with the county surveyor, established a line between the parties which began at the iron stake on the west original line of the lot and ran due east to a point on the east original line north of the rock corner, which the defendant had on February 29, 1956, pointed out as the corner between the lands of the parties. The two processioners who served used the description contained in the written agreement which R. H. Garrett prepared in locating the line established by them, and ignored the line which all three of the processioners and the parties had established and marked on February 29, 1956. The two processioners filed their return with the ordinary, together with the surveyor's plat, and made the written agreement of February 29, 1956, a part of their return. The line as thus established is not the true dividing line between the lands of the parties and it gives the defendant a considerable portion of their land. The plaintiffs in due time filed a protest to the return. The processioning proceeding was transmitted to the superior court of Cherokee County and is now pending in that court for trial. Count 1 alleges that the parties by mutual mistake of fact thought and understood that the written agreement as prepared by land processioner Garrett and signed by them would and did properly describe the dividing line between their respective lands as it had just prior thereto been located, agreed to, and marked by stakes. And Count 2 alleges that the defendant knew when the written contract was prepared by R. H. Garrett and signed by the parties that the language used therein did not describe the line they had just prior thereto located, agreed to, and marked by stakes. He also knew that the plaintiffs were mistaken in thinking that the description in the written contract located the dividing line at the place they had agreed to and, with knowledge of the fact they were so mistaken, failed to inform them that the written agreement placed the line at a place other than the one they had agreed to and thereby perpetrated a fraud on them. There are prayers in each count for reformation of the written contract, for a decree fixing the dividing line at the place the parties agreed to, and for an injunction to prevent the defendant from prosecuting the processioning proceeding. Each count of the petition was demurred to generally on the grounds: (1) that the facts alleged are insufficient to state a cause of action for any of the relief sought; and (2) that it affirmatively appears from the facts alleged that the plaintiffs can obtain all of the relief here sought in the pending processioning proceeding without the necessity of bringing an independent suit in equity. The allegations of each count were also specially demurred to on several different grounds. All of the demurrers were overruled and the exception is to that judgment.
Code § 85-1609 provides that when an adjoining landowner, who is dissatisfied with the return of land processioners, files his protest thereto with the ordinary, and the proceeding is transmitted to the superior court, the case is to be docketed and tried in the "same manner and under the same rules as other cases." The protest, like any other defensive pleading, may be amended at any stage of the cause. Watson v. Bishop, 69 Ga. 51 (2); Rattaree v. Morrow, 71 Ga. 528 (2b). And the issue on the trial of a protest to the processioners' return is not necessarily confined to the question of whether the line as marked by them should be sustained, but it is permissible for the protestant to obtain a verdict setting up the line as declared in his protest, if the evidence shall so warrant. Stewart v. Jackson, 144 Ga. 501 (3) ( 87 S.E. 656); McCollum v. Thomason, 33 Ga. App. 160 (1) ( 122 S.E. 800), and the cases there cited. The present action is, of course, independent of the processioning proceeding which is now pending in the same court between the same parties, and in Clay v. Smith, 207 Ga. 610 ( 63 S.E.2d 602), it was by headnote 2 unanimously held: "A defendant in a suit in the superior court is bound to set up all defenses that he has to the suit, either legal or equitable, and to pray for all the relief needed in aid thereof, ordinary or extraordinary; and he cannot at will decline to litigate as a defendant over these matters and bring an independent suit against his adversary who has already brought him into court." There, this court held that the plaintiff's independent suit was properly dismissed on general demurrer. For like holdings, see Hamilton v. First National Bank of Rome, 180 Ga. 820 ( 180 S.E. 840); and Georgia Power Co. v. Mayor c. of Athens, 206 Ga. 513 ( 57 S.E.2d 573), and the cases there cited. But it is here contended that the rule announced in the cases just cited, and those referred to, has no application to a processioning proceeding which has been transmitted to the superior court for trial because of a protest filed to the processioners' return. This position is untenable. "The superior courts, on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, and apply on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require." Code § 37-901. "A defendant to any suit or claim in the superior court, whether such suit be for legal or equitable relief, may claim legal or equitable relief, or both, by framing proper pleadings for that purpose, and sustaining them by sufficient evidence." Code § 37-905. And Code § 37-904 declares: "Any person claiming equitable relief may at any time, in aid of his suit, apply for and obtain, by proper pleading and proof, any of the extraordinary remedies known in equity, or such as are or may be granted by the judge of the superior court exercising equity jurisdiction, upon the same terms and conditions as are now granted in equitable proceedings." These sections were codified from the Uniform Procedure Acts of 1884 and 1887, and they vest authority in the superior courts of this State to settle in one proceeding all issues growing out of a justiciable controversy between the same parties; and, under these rules of procedure, it is clear to us that the plaintiffs can in the pending processioning proceeding, by proper pleading and proof, obtain all of the relief sought in this independent action. Hence, the petition as a whole should have been dismissed on that ground of the general demurrer which raised the question we have just dealt with. Since the petition should have been dismissed on general demurrer, it is unnecessary to consider the exception to the rulings on the special demurrers.
Judgment reversed. All the Justices concur.