Opinion
41733, 41734.
ARGUED JANUARY 11, 1966.
DECIDED JANUARY 28, 1966. REHEARING DENIED MARCH 3, 1966.
Processioning. Troup Superior Court. Before Judge Knight.
Richter Birdsong, A. W. Birdsong, Kelly, Champion Henson, John W. Denney, J. Norman Pease, Forrest L. Champion, for appellant.
Loeb C. Ketzky, H. T. Quillian, Jr., Sims Lewis, James R. Lewis, for appellees.
1. Where the verdict in a processioning case is not consistent with and cannot be grounded upon any established principle of law relating to processioning, it must fall under the attack of the general grounds in a motion for new trial.
2. Unless all of the evidence supports a finding either for the line as claimed by the applicant and marked out by the processioners or for the line as claimed by the protestants, the charge of the court should include an instruction to the jury as to the possibility of returning a third verdict simply finding against the applicant and leaving the parties where they were.
3. Although the introduction of the return of the processioners makes a prima facie case for the applicant and shifts the burden of going forward with the evidence in resisting the return and in proving protestant's contentions as to the line claimed by him, it is not error to fail to charge on the shifting of the burden of proof, absent any request therefor.
4. While it is the better practice, in charging on the matter of where the preponderance of the evidence lies, to use the language of Code § 38-107, a variation therefrom by omitting from or adding to the language will not constitute reversible error unless it appears that for some particular reason, the omission or addition was harmful.
5. Where the charge defines acquiescence (as to the location of a claimed dividing line between coterminous landowners) as meaning "to rest, to submit without opposition or question, to yield assent," it is not error to omit an instruction that knowledge, on the part of the party to be charged with acquiescing, is an essential element of acquiescence, absent any request therefor.
6. A charge unsupported by the evidence is error.
7. Other enumerations of error considered are found to be without merit.
8. Where a client discharge his attorney and moves to have his name stricken from the record as his counsel, the court may require as a condition for striking counsel's name full payment, or security for the payment, of his fee. Where there is a dispute between attorney and client as to what fee was contracted to be paid, an offer by the client to pay the full amount claimed by the attorney into the registry of the court to await a resolution of that question by the verdict of a jury is a sufficient arrangement for securing the payment of the fee and it is error to refuse to strike the attorney's name as counsel from the records.
ARGUED JANUARY 11, 1966 — DECIDED JANUARY 28, 1966 — REHEARING DENIED MARCH 3, 1966.
Albert C. Carter instituted a processioning proceeding in Troup County court of ordinary against Joe C. Freeman, Mrs. Kate Freeman, as executors under the will of J. Wilbur Freeman and Mrs. Donna Freeman Hurst for the purpose of having the line between his land and that of the Freemans marked anew through a wooded area. The portions of the line on the west and east of the wooded area were not in dispute.
Processioners were duly appointed and they proceeded to mark out and have surveyed a line through the wooded area which began at the southeast corner of Land Lot 233 in the 12th District of Troup County (a point not in dispute) and proceeded thence west along the south line of Lot 233 a distance of 1435 feet to an iron pin at a marked tree, thence north 28 degrees 16 minutes west through the lot 2484 feet to an iron pin at a marked tree located on an existing fence — returning to the western portion of the line which is not in dispute.
Along the line marked out and surveyed by the processioners were found marked trees, trees with imbedded wire indicating the existence of a fence at some prior time and at one point a circle of rocks.
To the return of the processioners the Freemans filed their protest and appeal to the superior court, asserting that the line as marked and surveyed by the processioners was not the true line between the applicant and protestants but that it was along a fence running from the southeast corner of Lot 233 along the east line of the lot approximately two-thirds the distance to the northeast corner, thence in a generally westerly direction to the point on the fence which had been reached by the processioners in their marking out and survey of a line.
Thus, the beginning and ending points of the lines as contended for by applicant and the protestants through the wooded area are the same, but between these disputed lines from the beginning to the ending points there lie approximately 100 acres of land.
Deeds in the chain of title of both the applicant and protestants (who hold under a common source) were introduced in evidence, but in none of the deeds can either of the lines contended for be identified from the descriptions. Neither the applicant nor any of protestants was in actual possession of the disputed area.
The case came on for trial before a jury in Troup Superior Court. The evidence was voluminous and generally conflicting. Mr. Carter, the applicant, conceded that he had known of the existence of the fence through the wooded or disputed area, which protestants now contend to be the line, but asserted that it was originally a part of a fence enclosing a pasture for cattle on his father's place, that it had never been along any land line and that he had never known of any contention to that effect until 1963, shortly before this processioning proceeding was instituted.
Protestants testified that they had always understood that the fence was the line, particularly since it was a part of a continuous fence running from U.S. Highway 27 in the western portion of Lot 216, along the south line of Lot 216 to where it corners with Lot 233, then north along the east line of Lot 233 about two-thirds of the depth of the lot and then westerly (though not in a straight line) to the Chattahoochee River in Lot 238. They introduced a witness by the name of Allen who testified that as a boy of 15 or 16 years he had assisted his father in constructing the fence from the Chattahoochee River easterly to an old fence already existing in Lot 233, and connecting it with the old fence. They had made some repairs on the old fence at that time. The work had been done for Mr. Carter, the applicant, and it was the witness' understanding that the fence was being placed on the line between Mr. Carter and the Freemans, and he thought that the old fence was a continuation of that line. The work was done in 1940. His father and brother, with whom he had worked on the fence, were dead.
Applicant admitted that he had employed the witness' father to erect a fence on the line between himself and the Freemans through the river bottoms — a portion of the line not in dispute — but denied that he had repairs made on the old fence or that he told the Allens that it was a part of the land line.
It was at the point where the fence erected by the Allens ended in Lot 233 that applicant contends the line turned southeast along a straight line to the southeast corner of Lot 233, as marked out by the processioners, and protestants contend the line continues along the old fence easterly to the east line of Lot 233 and then continuing along the old fence to the southeast corner of the lot.
There was no evidence that prior to the processioning applicant made known to protestants his claim that the line as marked out by the processioners was the dividing line between their lands, nor was there any evidence that the protestants had previously made known to the applicant their claim that the old fence was the line. Predecessors in title of both applicant and protestants were dead. There was no evidence of any facts, declarations or acquiescence on the part of any predecessor in title as to either line as the dividing line between them.
From a verdict finding in favor of the protestants the applicant appeals, enumerating errors in the overruling of an amended motion for new trial and in this connection a number of portions of the charge as given were assigned as error, as well as the failure of the court of charge in other respects without request. (The case was tried prior to August 1, 1965).
After the verdict applicant's counsel advised him that he did not regard the effort to secure a new trial as being worth-while, and upon applicant's request returned his deeds, plats, etc. Applicant then employed other counsel to pursue a motion for new trial, and sought to have the names of his original counsel stricken and those of his new counsel substituted on the record. Original counsel objected unless they were fully paid or made secure for their fees. There was a dispute between applicant and his original counsel as to what had been the agreement for fees, he contending that he had agreed to pay $2,500 if the case was won or $1,000 if lost, while counsel contended that one of them (who was in the case from the beginning) was to get $2,500 unconditionally and the other, who was associated for the trial by original counsel, was to get $500, or a total of $3,000, and that applicant had agreed to that. The court refused to strike the name of counsel until and unless applicant should pay directly to them the $3,000, and refused to substitute the names of new counsel or to recognize them as applicant's attorneys. Contending that there was an issue of fact which could be resolved only by a jury as to what his contract with original counsel had been, applicant offered to pay $3,000 into the registry try of the court, the disposition of which should await a jury trial on the matter, as a means of securing counsel for their fees. The court refused to permit him to do that.
Applicant enumerates as error any consideration of the order sought by counsel directing payment to them of their fees on jurisdictional grounds involving residence and service, as well as the right and power of the court to grant it.
1. "An unascertained or disputed boundary line between coterminous proprietors may be established either (1) by oral agreement, if the agreement be accompanied by actual possession to the agreed line or is otherwise executed; or (2) by acquiescence for seven years, by acts or declarations of owners of adjoining land, as provided by the Code, § 85-1602." Bradley v. Shelton, 189 Ga. 696 (4) ( 7 S.E.2d 261). We are not concerned with any oral agreement, for there is no evidence of any as to any line.
It is contended, however, by protestant that there was acquiescence for more than seven years in the old fence as the line. If there was, of course applicant is bound by it.
The establishment of a line by acquiescence can be accomplished only by the acts or declarations of both adjoining owners. Ivey v. Cowart, 124 Ga. 159 (4) ( 52 S.E. 436, 110 ASR 160); Cassels v. Mays, 147 Ga. 224 ( 93 S.E. 199); Tietjen v. Dobson, 170 Ga. 123 (4) ( 152 S.E. 222); Southern Timber Co. v. Bland, 32 Ga. App. 658 (2) ( 124 S.E. 359). It must appear that as to the line sought to be established by a coterminous owner his claim of it as a line must have been made known to the adjoining owner, for "[o]ne cannot acquiesce in something of which he has no knowledge." Dixon v. Dixon, 97 Ga. App. 54, 58 ( 102 S.E.2d 74). See also, Robertson v. Abernathy, 192 Ga. 694, 697 ( 16 S.E.2d 584).
Consequently, the fact that protestants had claimed the old fence as the dividing line for more than seven years, or even for more than 20 years, without a showing that the claim was made known to the adjoining owner, could not establish it as the line. We find no evidence in this record that the claim was made known until just prior to the institution of the processioning proceedings. Nor do we find any evidence that the protestants or their predecessors in title performed any act or made any declaration concerning the fence as a dividing line that could be said to have brought that matter to applicant's attention.
We find no evidence of any act of the applicant in recognition of the fence as the line unless it be in the testimony of Allen. He testified that his father had been employed by Mr. Carter (applicant) to erect a fence across the bottoms, from the river to the wooded area. In 1940, when he was about 16 years old, he and his brother assisted the father in putting in the fence, which "separates the two places," and that in addition to building the fence through the bottoms they rebuilt or repaired for a considerable distance an old fence to which it joined into the area. He did not know whether the old fence had been a pasture fence or not, but it was crooked and took different positions. As to the matter of the fence as a dividing line between the Carter and Freeman places he testified: "I guess it separates the two main points down there at the river." His father and his brother have since died. The line through the river bottoms along the fence which the Allens erected was not in dispute. Consequently, it resolves to the matter of whether the repairs to the old fence which Allen says were made, amount to an act or declaration of recognition of the old fence as the dividing line. We cannot so construe the evidence. It was applicant's testimony that the old fence was not on any land line, but was an old pasture fence.
That protestants may have sold and caused the timber to be cut up to the old fence is not alone a sufficient act or declaration to establish it as a dividing line by acquiescence. McCook v. Crawford, 114 Ga. 337 (2) ( 40 S.E. 225); White v. Gordon, 213 Ga. 730, 733 ( 101 S.E.2d 759); Pearre v. Wilkinson, 54 Ga. App. 638, 645 ( 188 S.E. 553); Dixon v. Dixon, 97 Ga. App. 54, 57, supra. And see Southern Timber Co. v. Bland, 32 Ga. App. 658 (4), supra. In connection with their testimony relative to a sale of the timber (some 10 years previously) the Freemans asserted that they had no discussion about the matter with Mr. Carter. Mr. Carter testified that he was on the land infrequently since he had purchased it in 1937, particularly in the disputed area, and had known nothing of the cutting of the timber until shortly prior to the institution of this proceeding.
The verdict for the line of protestants is not consistent with and cannot be grounded upon any established principle of law and must fall under the attack of the general grounds in the motion for new trial.
2. The court charged that the jury should return a verdict finding in favor of the applicant or of the protestants. Appellant contends that it was error, since a third verdict, simply finding against the applicant, was possible under the evidence, citing McCollum v. Thomason, 33 Ga. App. 160 ( 122 S.E. 800); Payne v. Green, 84 Ga. App. 689, 694 ( 67 S.E.2d 195); Boyd v. Hill, 94 Ga. App. 686 ( 96 S.E.2d 222).
If all of the evidence supports a finding for the applicant or for the protestant, the charge as given was without error. McGinty v. Interstate Land c. Co., 92 Ga. App. 770, 772 ( 90 S.E.2d 42). But if the evidence supports neither of the lines, or if it tends to support another line as being the true one, the charge should have included the possibility of a third verdict. Fraser v. Kichline, 108 Ga. App. 701, 703 ( 134 S.E.2d 492). Under our view of the evidence, the line contended for by protestants not having been established by acquiescence, and there being some conflict in the testimony as to the markings on the line contended for by the applicant, a third verdict could have been rendered leaving the parties where they were, and the jury should have been properly instructed as to that.
3. Appellant assigns error upon the charge relative to the burden of proof, simply stating that it rested upon the plaintiff to make out his case, and urging that the introduction of the return of the processioners made out his prima facie case, shifting the burden to the protestants to establish the line as contended for by them. It did shift the burden of going forward with the evidence in resisting the return and of proving their contentions as to the line for which they contended. There was no request for a further charge on the matter of the burden of proof, however, and we find no error in this respect. Ray v. Dixon, 106 Ga. App. 470 (2) ( 127 S.E.2d 309).
4. Error is assigned upon the omission of "the nature of the facts to which the witnesses testified and the reasonableness of their testimony," and adding "their bias or prejudice, if any appears," in the charge on the matter of where the preponderance of the evidence lies. While it is better to charge on this matter in the language of Code § 38-107, yet the courts should not be so straight-jacketed in this respect as to hold that any variation is error. Fountain v. McCallum, 194 Ga. 269 ( 21 S.E.2d 610). Before it is held to be error it should appear that the omission or addition was for a particular reason harmful. That does not appear.
5. The charge is urged to be erroneous because the court did not include (without request therefor), in connection with its instruction relative to the matter of acquiescence, an instruction that an essential element is knowledge, on the part of the party to be charged with acquiescing, of the claim of the adjoining owner as to the location of the dividing line. While it would have been a proper charge if made, yet in the light of the whole charge on this matter we do not think it was error to omit it, there having been no request therefor. Acquiescence was defined as meaning "to rest, to submit without opposition or question, to yield assent," and we cannot see how this could be applied without a conclusion of knowledge on the part of him who is to be charged with acquiescence. The language, of necessity, includes it. One does not yield, submit or assent to a matter unless he knows about it. The jury was instructed that acquiescence, to be effective in the establishment of a dividing line, must have been on the part of both the applicant and the protestants.
6. The court charged that if adjoining property owners deliberately erect monuments or fences or make improvements on a line between their lands, upon the understanding that it is the true line, it will amount to a true location. This is urged as being erroneous because nothing in the evidence supports any agreement or understanding between the parties, or their predecessors in title, that the fence was on the true line. With this contention we must agree. A careful search of the record discloses no evidence as to who may have erected the fence, as to when it may have been erected, or as to any agreement or understanding on the part of the adjoining owners — at the time the fence was erected or at any subsequent time — that it was located on the true dividing line between them.
The case of Henderson v. Walker, 157 Ga. 856 (1) ( 122 S.E. 613), from which this charge was lifted, does not require a different conclusion. In that case the fence was erected pursuant to an agreement or understanding to have the line located by a survey, and it was erected upon the line as determined by the survey. There was cultivation up to the fence thereafter for more than seven years. In that context the court observed that the charge, similar to that here dealt with, "is not open to the criticism that there was no evidence that any agreement had ever been entered into between the coterminous owners, which had become executed." Henderson v. Walker, supra, at p. 862.
7. We have examined appellant's several other enumerations of error relating to the processioning case and find them to be without merit.
8. The motion to strike names of counsel, and the matter of attorneys' fees.
This matter was initiated by the motion of Mr. Carter to strike from the docket and record the names of attorneys who had, in the trial of the processioning case, been his counsel and to substitute the names of others. The attorneys whose names he sought to have stricken then filed a motion for an order directing that he pay to them the full amount of fees which they contended he had agreed to pay, or secure them therefor, and in default thereof objected to the striking of their names. To this motion Mr. Carter filed a plea to the jurisdiction, traversed and moved to quash the service, and demurred generally. The plea, motion and demurrer were overruled, and an order was entered directing Mr. Carter to pay to his counsel the full amount of fees contended for by them before their names were stricken, and the court refused to recognize as his counsel others whom he sought to substitute.
The motion to strike the names of counsel was made in connection with the case already pending. The motion for an order to require full payment of fees was likewise made in connection with the same case, as were the plea to the jurisdiction, the motion to quash service and the demurrer. They are designated and treated an ancillary motions, etc. — not as a new, separate and distinct case, and in that we think counsel were and are correct. It is sufficient if these were served upon the opposite party or his attorney. Code § 81-301. The motion and objections of the attorneys were served upon a member of the law firm which Mr. Carter sought to have substituted as his counsel, which had filed in his behalf a motion for new trial and which represents him in this appeal. We think the service was good. Denial of the plea to the jurisdiction and the motion to quash was proper.
The motion was not subject to general demurrer. White v. Aiken, 197 Ga. 29 ( 28 S.E.2d 263). There was no error in overruling it.
But pretermitting all of these matters, and the matter of whether the orders should not have been entered because the filing of the motion for new trial amounted to the institution of a new action under the practice prevailing prior to the adoption of the Appellate Practice Act of 1965, or because Mr. Carter's counsel in the processioning case had abandoned it by returning to him the documentary evidence, etc., and informing him that pursuing a motion for new trial would be useless and fruitless in their judgment, or because there was no recovery upon which Mr. Carter's counsel could have a lien for their fees, since the processioning case had been lost, there is another reason why entry of the order requiring full payment of the claimed fees was error.
It is well settled that a client may discharge his attorney for any reason, however arbitrary, dismiss his suit or settle it to his own satisfaction and that his action in doing so is not a breach of the contract of employment, but an exercise of his right. Dorsey v. Edge, 75 Ga. App. 388, 392 ( 43 S.E.2d 425). The dismissal, however, cannot defeat the attorney's right to compensation, and it has been held that his name should not be stricken as counsel, over objection, unless he has been fully paid or has been made secure as to his fee. White v. Aiken, 197 Ga. 29, supra. The offer to pay the full amount of the fee claimed into the registry of the court, there to await the verdict of a jury as to what amount was owed by applicant to his counsel, was a sufficient means of securing them for their fees. This is particularly true since there was a dispute between applicant and his counsel as to what the fee arrangement had been, raising a question that could be settled only by the verdict of a jury. The court had no power to determine it. The case of White v. Aiken, 197 Ga. 29, supra, does not require a different conclusion.
Judgments reversed. Bell, P. J., and Jordan, J., concur.