Ehrlich v. Mills et al.

Supreme Court of Georgia1948-05-13No. No. 16167

203 Ga. 600

Summary · law.co

Holding. The trial court did not err in excluding hearsay testimony regarding acreage, in refusing untimely jury instructions, or in permitting the jury to determine the boundary location based on conflicting evidence. The judgment denying the plaintiff's motion for a new trial was affirmed.

Ehrlich brought suit seeking an injunction to prevent neighboring landowners from trespassing on his property, but the real dispute centered on the precise location of the boundary line between the two adjoining parcels. The jury rendered a verdict in favor of the defendants, and the trial court denied Ehrlich's motion for a new trial. Ehrlich appealed, challenging several evidentiary rulings and jury instructions.

The appellate court rejected Ehrlich's contentions on multiple grounds. The court found that testimony from the original grantor regarding the acreage of the property was properly excluded as hearsay and as evidence barred by statute. The court also determined that Ehrlich's request for a specific jury charge was untimely, having not been presented before the jury retired to deliberate. Additionally, statements about a cemetery in deeds Ehrlich relied upon were not binding on the defendants, who did not claim title through those same deeds, and a surveyor's map similarly did not conclusively establish the boundary. Because the evidence regarding boundary location was conflicting and did not compel a verdict in Ehrlich's favor, the denial of the new trial motion was proper.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Admissibility of hearsay testimony regarding property descriptions and acreage
Timeliness of jury charge requests
Effect of deed descriptions and surveyor maps on boundary disputes between non-successor parties
Standards for granting new trials in boundary line disputes

Procedural posture

The plaintiff appealed from a judgment entered on a jury verdict in favor of the defendants and the trial court's denial of the plaintiff's amended motion for a new trial in an action for injunctive relief based on an alleged boundary line trespass.

Authorities cited

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Opinion · public domain

majority opinion

Bell, Justice.

The plaintiff sued for injunction to restrain the defendants from trespassing upon a described tract of land claimed by the plaintiff. The answer of the defendants and the evidence introduced by both sides on the trial showed that the plaintiff and one of the defendants, hereinafter referred to as the defendant, owned adjoining tracts of land, and that the real matter in dispute was the true location of the boundary line. The jury returned a verdict in favor of the defendant; the plaintiff’s motion for a new trial as amended was overruled, and he excepted. Held:

1. The court did not err in excluding the testimony of the plaintiff to the effect that at the time he purchased “the 172-acre tract,” as evidenced by his deed, the grantor stated that he was conveying the entire tract of land, known as the E. J. Eaircloth place, and that it contained 172 acres; the evidence having been objected to on the grounds that it was hearsay, and that the deed was the highest evidence. The evidence was not admissible under the Code, § 38-308, relating to declarations in disparagement of title or to prove adverse possession, but was inadmissible and subject to objection upon each of the grounds urged. See, in this connection, Code, §§ 38-203, 38-301; Blalock v. Miland, 87 Ga. 573 (5) (13 S. E. 551); Whelchel v. Gainesville &c. Railway Co., 116 Ga. 431 (2) (42 S. E. 776); Patterson v. Baugh, 51 Ga. App. 767 (1) (181 S. E. 686). Nothing to the contrary was ruled in Wood v. Crawford, 75 Ga. 733 (5), cited for the plaintiff in error.

2. The complaint that the judge refused to give a stated charge as requested in writing does not show error, since it does not appear that the request was presented before the jury retired “to consider of their verdict.” Code, § 81-1101; Brooks v. State, 96 Ga. 353 (4) (23 S. E. 413); Dickey v. Grice, 110 Ga. 315 (3) (35 S. E. 291); Nickerson v. Porter, 189 Ga. 671 (2) (7 S. E. 2d, 231).

3. In one ground of the motion for a new trial it was contended that the deed under which the plaintiff claimed, in referring to a certain map, contained a particular description of the land which was repugnant to the general description stated in such deed, and that the jury were therefore entitled to be instructed “as to the legal effect of the repugnant description upon the deed and the general description of the land therein.” There was no merit in this ground, since it did not set forth any definite principle of law which it is contended the court should have given in charge to the jury. Pitts v. State, 197 Ga. 317 (2) (28 S. E. 2d, 864); Elliott v. Robinson, 198 Ga. 811 (5) (33 S. E. 2d, 95).

4. When improper argument to the jury is made by an attorney for one of the parties, it is necessary, in order to make the same a basis for review, that opposing counsel should make objection to such argument or invoke some ruling or instruction with reference thereto by the court. Code, § 81-1009; Brooks v. State, 183 Ga. 466 (188 S. E. 711, 108 A. L. R. 752); Mims v. State, 188 Ga. 702 (2) (4 S. E. 2d, 831). It appears that the judge did instruct the jury to disregard the alleged improper argument which it is claimed appealed to racial prejudice, and it is not shown that any further or other action on the part of the judge was requested or invoked. Thornton v. State, 190 Ga. 783, 784 (2) (10 S. E. 2d, 746).

(a) Under the preceding rulings, none of the special grounds of the motion for a new trial shows cause for reversal.

5. The statements in reference to a cemetery, as contained in some of the deeds under which the plaintiff claimed, were not conclusive on the defendant with respect to boundary, since she (the defendant) did not claim title under any of such deeds. Gilmer v. Harrison, 146 Ga. 721 (4) (92 S. E. 67); Sammons v. Nabers, 184 Ga. 269 (1) (191 S. E. 124). Nor was she concluded in that respect by a similar statement in a surveyor’s map, which, so far as appears, some other person procured to be made as a description of the plaintiff’s land, but which was introduced by her on the trial. Christian v. Macon Ry. & Light Co., 120 Ga. 314 (2) (47 S. E. 923); Southern Railway Co. v. Newman, 187 Ga. 132, 134 (199 S. E. 753). The evidence as to the true location of the boundary line was conflicting, and was not of such character as to demand a finding in favor of the plaintiff. The court did not err in refusing a new trial. Judgment affirmed.

No. 16167.

May 13, 1948.

Price & Spivey, for plaintiff.

All the Justices concur.