Summary
In Blair v. McMillion, 171 Miss. 33, 156 So. 519, the Court said: "Appellants requested the chancellor, before deciding the case, to go view and measure the premises involved.
Summary of this case from DENNERY, ET AL. v. HUGHES, ET ALOpinion
No. 31208.
September 24, 1934. Suggestion of Error Overruled, October 22, 1934.
APPEAL AND ERROR.
Where issue was one of fact as to boundary line, and at conclusion of testimony parties joined in request that chancellor view and measure the premises, and chancellor based decree on his view and measurements in connection with other evidence, decree could not be reversed even if against overwhelming weight of testimony, since view and measurements by chancellor were part of the evidence.
APPEAL from Chancery Court of Pike County.
Price, Cassidy McLain, of McComb, for appellants.
The chancellor's findings and decree are totally unsupported by any evidence whatsoever, as shown by this record.
It is evident that the chancellor was confused by the appellee's answer which alleged that Peach street had been widened, and that he inadvertently overlooked the fact that the testimony showed conclusively that Peach street had been narrowed.
Williams Hunt, of McComb, for appellees.
This being a question of fact and the court having decided the question of fact, and the same being in accord with the facts and not manifestly erroneous, this court will not disturb the finding of the chancellor.
Heard v. Cottrell, 100 Miss. 42, 56 So. 277; Lott v. Hull, 104 Miss. 308, 61 So. 421; Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166; Bland v. Bland, 105 Miss. 478, 62 So. 641; Lee v. Wilkinson, 105 Miss. 358, 62 So. 275; Evans v. Sharborough, 106 Miss. 687, 64 So. 466; Freeman v. Freeman, 107 Miss. 750, 66 So. 202; Humber v. Humber, 109 Miss. 216, 68 So. 161; Bank of Lauderdale v. Cole, 111 Miss. 39, 71 So. 260; Johnson v. Yazoo County, 113 Miss. 435, 74 So. 321; Reichman-Crosby Co. v. Dinwiddie, 117 Miss. 103, 77 So. 906.
A decree on controverted facts is analogous to the verdict of the jury and will not be reversed unless shown to be opposed to the weight or preponderance of the testimony.
Davies v. Richmond, 45 Miss. 499; Apple v. Gabong, 47 Miss. 189; Harrington v. Allen, 48 Miss. 492; Wilson v. Beauchamp, 50 Miss. 24; Thompson v. Poe, 104 Miss. 586; Woodmen of the World v. McDonald, 109 Miss. 167; Mardis v. Yazoo M.V. Railroad, 115 Miss. 734; Estes v. Jones, 119 Miss. 142; St. Louis S.F.R. Co. v. Bowles, 107 Miss. 97.
Argued orally by Will G. McLain, for appellant, and by E.G. Williams, for appellee.
The question involved in this case is the correct location of the north and south line between the lots of appellants and appellees in square sixty-three in the city of McComb. The issue between the parties is purely one of fact; there is no controversy as to the law of the case. Appellants concede that to be true, but contend that the decree against them ought to be reversed because it is against the overwhelming weight of the evidence. In other words, they concede that there was evidence supporting the decree, but contend that in value it was wholly insufficient to sustain the chancellor's finding. It may be true (we do not decide whether or not it is) that at the conclusion of the testimony of the witnesses the overwhelming weight of the evidence was with appellants; still the decree must be affirmed because of what then took place.
Appellants requested the chancellor, before deciding the case, to go view and measure the premises involved. Appellees joined in this request. Whereupon the chancellor went upon the premises, viewed appellants' and appellees' lots, measured them twice, and, after so doing, rendered the decree appealed from, in which it was recited that he found from such view and measurements in connection with the other evidence in the case that the facts were against appellants. What the chancellor saw in connection with his measurements cannot be ignored in deciding this question. It is a part of the evidence in the case, and may have been the turning point in the decision of the issue of fact.
Affirmed.