Opinion
32008.
DECIDED JULY 16, 1948. REHEARING DENIED JULY 26, 1948.
Processioning; from Candler Superior Court — Judge Humphrey. September 29, 1947.
Hugh R. Kimbrough, Alfred Herrington, for plaintiff in error.
Anderson Trapnell, contra.
1. In a processioning case where the application to the processioners states proper and sufficient grounds for processioning and after protest and on the trial thereof before the superior court, the evidence on behalf of the applicant shows the petition, the entry of service on the adjoining landowner in question entered thereon, notice to such adjoining landowner in conformity with the statute, the return of the processioners and the surveyor's plat, a prima facie case is made in favor of the applicant. See Castleberry v. Parrish, 135 Ga. 528 ( 69 S.E. 817).
2. A protest which fails to specify therein the lines objected to and which fails to specify the true lines as claimed by the protestant is subject to general demurrer and is properly dismissed by the trial court on oral motion of counsel for the applicant.
DECIDED JULY 16, 1948. REHEARING DENIED JULY 26, 1948.
The defendant in error, H. V. Lanier, filed an application with the processioners of land of the 1736th District G.M., Candler County, contending that he is the owner of 246 acres more or less of land bounded on the north by lands now or formerly owned by Math Hendrix; east by lands now or formerly owned by Mary R. Lane; south by lands of Mrs. Minah Warren (formerly W. M. Turner), lands of Mrs. L. H. Edenfield (formerly James Warren) and by the Old Dublin Road; west by the Old Dublin Road; that the line on the south side of said tract between petitioner's land and the land of Mrs. L. H. Edenfield, who is an adjoining landowner, is in dispute and petitioner asks that said disputed line be surveyed and marked anew by the processioners and the county surveyor. Also that Mrs. L. H. Edenfield is a resident of said State and county.
The processioners appointed a day and hour for the running of the line alleged to be in dispute between the applicant and the plaintiff in error, Mrs. L. H. Edenfield, hereinafter referred to as the protestant, of which 10 days' notice was served on the protestant as provided for in Code § 85-1605.
Thereafter the processioners made their return to the court of ordinary in accordance with Code § 85-1607 in which they certified that they had surveyed the line between the applicant and the protestant and that they had run and marked said line anew.
Accompanying said return was the plat of the surveyor showing the location of said line.
The protestant filed in the court of ordinary her protest consisting of 11 paragraphs, the first three of which are no longer insisted upon, and the remaining paragraphs being as follows: "Now comes Mrs. L. H. Edenfield, as protestant within the time prescribed by law and protests the return of the processioners as follows: 4. The proceedings with the plat seem to be an attempt to establish the line between the protestant and the applicant with respect to a disputed area of land of 25 acres more or less and not between the lands of the parties, that is the land of the parties not in dispute. 5. The dispute between the parties to the area of 25 acres more or less arose from a proceeding of exemption which reads as follows: `Georgia. Emanuel County To J. L. Moore, Surveyor of said County: You are directed and required by this order to enter upon, survey and lay off from a certain tract of land in the 58th District of said county containing one hundred acres more or less bounded by lands of Marion Turner, A. B. Braddy, Rob't Griffin and others where James Warren, Jr., now resides and to take from survey and plat seventy-five acres of said land, fifty acres for the head of the family and twenty-five acres for the five children to return the plat to my office within fifteen days from this date. Witness my hand and seal this Oct. 29th 1885, . . . John Bell, Ordinary E. Co., Ga. State of Georgia, Emanuel County. In obedience to an order of the Ordinary dated Oct. 29th 1885 I have entered upon the said lands named in said order and taken from said land 75 acres of land bounded as the above plat represents. James L. Moore, Co. Surveyor.' The above appears in Minutes, Court of Ordinary, Emanuel County, Ga., 1885, page 37. 6. The disputed area of 25 acres is the difference, the land of the 100 acre tract not exempted. 7. The proceedings in this case is an attempt to recover the disputed area of 25 acres as stated not by legal proceedings in such cases but by claiming a land-line dispute, a circuitous and convenient way to shift the burden to the defendant. 8. The issue between the parties with respect to said disputed area of twenty five acres involves evidence of disputed title to said area, and involves a question of fact for a jury to decide upon an issue of fact as to the title. 9. The case is a case of land title and not land lines. 10. The remedy of the plaintiff is not processioning but that of ejectment. The jurisdiction is in the Superior Court of Candler County. The land is located in said county and the protestant herein is a resident of said county. Protestant is willing and ready to acknowledge service and join issue to an action of ejectment upon a trial before a jury in said county without delay. Protestant is willing to try the issue in the first term, after legal service of fifteen days before the term. 11. Before the processioning and survey protestant had served in person upon the plaintiff his counsel and the processioners the following: We object to the foregoing proceedings for the reason the case is not a case for processioning and does not involve disputed land lines, but it is a case for ejectment involving title to an area of 25 acres of land between the two parties. The Superior Court of Candler County has jurisdiction of the case for ejectment. We will acknowledge service and plead and join issue for a speedy trial in said case of ejectment. Wherefore protestant prays that the return of the processioners be dismissed."
Upon the filing of this protest, it together with the application, the return of the processioners, and the plat was returned by the ordinary to the clerk of the superior court where the case came regularly on for trial.
On motion of counsel for the applicant the protest was dismissed by the judge, thereupon, based on the petition to the processioners, the entry of service entered upon it, the notice to the protestant, the return of the processioners and the surveyor's plat, the trial judge directed a verdict in favor of the return of the processioners and judgment was entered accordingly.
The judgment of the trial court dismissing the protest and also the directing of a verdict in favor of the applicant, are the assignments of error.
1. Code § 85-1605 provides as follows: "Every owner of land, any portion of which lies in any district, though the remainder lies in an adjoining district or an adjoining county, who desires the lines around his entire tract to be surveyed and marked anew, shall apply to the processioners of said district to appoint a day when a majority of them, with the county surveyor, will trace and mark the said lines. Ten days' written notice of the time of such running and marking shall be given to all the owners of adjoining lands if resident within this State; and the processioners shall not proceed to run and mark such lines until satisfactory evidence of the service of such notice shall be produced to them." The applicant complied with the provisions of the Code section. The application pointed out which line was in dispute. See Groover v. Durrence, 36 Ga. App. 543 (5) ( 137 S.E. 299). The application set out a proper cause of action for processioning. It is undisputed that the applicant and the protestant are coterminous landowners. On the trial the applicant's case was supported by this petition, the entry of service on the protestant, the notice to the protestant, the return of the processioners and the surveyor's plat. This made out a prima facie case for the applicant. See Castleberry v. Parrish, 135 Ga. 527, 528 (3) ( 69 S.E. 817). The directing of the verdict in favor of applicant was therefore without error, providing the trial judge did not err in his judgment dismissing the protest, which question we now consider.
2. Code § 85-1609 provides as follows: "Any owner of adjoining lands, who may be dissatisfied with the lines as run and marked by the processioners and surveyor, may file his protest thereto with the ordinary within 30 days after the processioners have filed their returns, specifying therein the lines objected to, and true lines as claimed by him; and it shall be the duty of the ordinary to return all the papers, including the plat made by the surveyor, with said protest, to the clerk of the superior court of the county or counties where the disputed land lies (copies being sent the adjoining counties); and it shall be the duty of the clerk to enter the same on the issue docket, as other causes, to be tried in the same manner and under the same rules as other cases. The verdict of the jury and the judgment of the court shall be framed to meet the issue tried and decided; Provided, that it shall not be necessary to run any lines between adjoining landowners except the lines in dispute." (Italics ours.)
That part of the protest, the dismissing of which is excepted to, is set forth in the statement of facts. An examination of this instrument shows that it is subject to general demurrer as it fails to constitute a protest as contemplated by the Code section providing for the same. It fails to specify therein the line objected to and it fails to specify the true line as claimed by the protestant. An oral motion in the nature of a general demurrer was made to dismiss the same.
The judgment of the trial court sustaining this motion and dismissing the purported protest is without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.