Opinion
42036.
ARGUED MAY 4, 1966.
DECIDED MAY 30, 1966. REHEARING DENIED JUNE 23, 1966.
Boundaries. Bryan Superior Court. Before Judge Durrence.
Ralph U. Bacon, for appellants.
Brannen, Clark Hester, W. Roscoff Deal, for appellees.
1. Where the judgment overruling a motion for new trial was signed December 14, 1965, and filed by the clerk on December 15, a notice of appeal filed January 14, 1966, is within 30 days of the entering of the judgment ( Code Ann. § 6-903), and a motion to dismiss the appeal because the notice was filed more than 30 days after the signing of the judgment appealed from is denied.
2. The general grounds of the motion for new trial are without merit.
3. Where the issue was boundary and a deed was admitted only as a part of the history of ownership, reading of the description contained therein by counsel in connection with his interrogation of a plaintiff who was grantor therein, and who had later reacquired the land and consequently claimed under it, was not error.
4. It was not error to exclude tax returns of the plaintiffs when the question for resolution was the location of boundary lines; these could reflect no light on that question even though the acreage shown in the returns varied and was less than that claimed by the plaintiffs in their entire tract.
5. The burden of proof rests upon him who asserts a fact, the existence of whose case depends upon it.
6. A misjoinder of causes of action must be taken advantage of by special plea or by a timely special demurrer on that ground.
7. Enumerations of error not argued in the brief will be deemed abandoned.
ARGUED MAY 4, 1966 — DECIDED MAY 30, 1966 — REHEARING DENIED JUNE 23, 1966 — CERT. APPLIED FOR.
Finding no equity or question of title to land involved, the Supreme Court transferred this case to us, leaving as the only consideration alleged errors in the trial of a case involving the locations of boundaries.
Miss Pauline Morgan and Mrs. Laurie Moses, as plaintiffs, brought suit against their adjoining landowners, Joseph H. Smith and D. B. Smith, seeking to restrain and enjoin them from cutting and removing timber from a 1,600 acre tract of land (later amended to be 2,049.8 acres) to which plaintiffs claimed title. Defendants demurred generally and specially, the special demurrers seeking to have plaintiffs plead an adequate and proper description of the land. They also answered, denying all allegations of the petition, save those which were jurisdictional, and sought a restraining order against the plaintiffs, restraining them from interfering with defendant's possession or activities on the land which they claimed to own. The general demurrer was overruled, but the special demurrers calling for adequate descriptions were sustained and the plaintiffs were directed to prepare and file a plat of the lands, and in compliance therewith plaintiffs caused a survey and plat to be made, amended their petition by alleging descriptions of 37.2 acres of land which they contended defendants were trespassing on and attached the plat (on which the area was designated as tract 1) as an exhibit to the petition. Defendants then amended their answer, denying the alleged trespasses, affirmatively claiming ownership of tracts 2, 3, 4, 5, 6, and 7 and asked that these be decreed to be the property of the defendants, though Joseph H. Smith claimed title to tracts 6 and 7 and D. B. Smith separately claimed title to the others, and in the amendment to their answer asked to have their claims severed and tried separately. The request for severance was denied and the case came on for trial before a jury. Before the trial got under way the parties orally agreed in open court that the issue was the location of the boundary lines — not title — and they proceeded on that basis. A settlement was reached as to tracts 2 and 4 and by agreement these were eliminated from the litigation. The evidence is voluminous, both oral and documentary, there being some 1,000 pages of testimony and some 200 pages of deeds, wills, plats, etc., in the record.
A verdict was returned awarding areas 1, 5, 6 and 7 to the plaintiffs and area 3 to the defendants. Defendants filed their motion for new trial, which after amendment was denied, and they appeal.
This case was tried prior to the effective date of the Appellate Practice Act of 1965.
1. The motion to dismiss the appeal is denied, Headnote 1 requiring no elaboration.
2. As we have indicated, the evidence was voluminous, and a recital of it to demonstrate that the verdict is supported would serve no useful purpose. The general grounds of the motion for new trial, the overruling of which is enumerated as error, are without merit.
3. In the course of the trial plaintiffs tendered a deed in evidence and sought to read the description of the land in it in connection with the interrogation of one of the plaintiffs, who was the grantor in the deed, the grantee being one of her predecessors in title when title came back into her. Counsel for the defendants thereupon stated: "I have no objection to you introducing the deeds, but the deeds are the highest and best evidence and speak for themselves," and urged, "It's not proper for him to read them at all. I mean it just takes up Your Honor's time." The objections were overruled, the deed was admitted and counsel was permitted to read the description in connection with his interrogation of the plaintiff and having her identify the deed.
Whether the description of the land in a deed which the witness had executed as grantor was a self-serving declaration concerning title to the land described (the title later having come back into the witness), need not be decided, for the deed was not offered to prove title, but merely as a part of the history of plaintiff's ownership. We see no error in the admission of the deed, and no abuse of discretion in permitting it to be read.
4. Defendants tendered in evidence tax returns of the plaintiffs for the years 1910 through 1963 for the purpose of showing that the amount of acreage claimed by them in their tax returns had varied and was considerably less than that now claimed in this action. These were excluded, on timely objection, because it appeared that the real question between these adjoining landowners was the location of boundary lines between them, and the tax returns could shed no light upon that issue. This ruling of the court was proper. While tax returns have been held to be admissible for the purpose of showing ownership and value ( Seagraves v. Seagraves, 193 Ga. 280, 281 ( 18 S.E.2d 460), but see Holt v. Daniel, 47 Ga. App. 334 (1) ( 170 S.E. 383), Carter v. Ray, 70 Ga. App. 419, 429 (6) ( 28 S.E.2d 361), and Gruber v. Fulton County, 111 Ga. App. 71 ( 140 S.E.2d 552)), they are not evidence of boundaries or of the locations of boundaries, which do not appear on the returns.
5. Error is assigned on a charge of the court that as to areas 5, 6 and 7 of the disputed lands the burden of proof was upon the defendants. There was no error in this charge, since in their amended answer the defendants affirmatively set up their claim to these areas and asked that title be decreed in them. Code § 38-103. Appellants concede in their brief that "It is true that defendants in the court below came back claiming that the plat made in accordance with the court's order showed that their lands had been encroached upon." The "coming back" was by way of amendment and cross action for these areas.
6. It is contended that there was a misjoinder of causes of action, for that there was a separate title history behind the several tracts or areas, no one of them being contiguous to another. The request for severance was made in defendants' answer, not as a claim of misjoinder by way of plea or special demurrer. Our present procedures make no provision for this, as does § 42 (b) of the Civil Practice Act of 1966, which becomes effective March 1, 1967. Consequently, denial of the request was not error ( Code § 81-304; McCullough v. Atlantic Refining Co., 181 Ga. 502 (2) ( 182 S.E. 898)), and this enumeration of error is without merit. Moreover, the several tracts were located at intervals along the common boundary between plaintiffs and defendants and it is immaterial that they may have been acquired through separate claims of title.
7. Other enumerations of error are not argued in the brief and are deemed abandoned. Tift v. McCaskill, 171 Ga. 289 (3) ( 155 S.E. 192).
Judgment affirmed. Bell, P. J., and Jordan, J., concur.