Fleming v. Collins

1. The sufficiency of the evidence to support the verdict can not be questioned by a direct bill of exceptions; and where the bill of exceptions recites that the record does not contain all the evidence, the Supreme Court can decide no question that involves a consideration of the evidence.

2. Although findings in a verdict which are immaterial, or findings on matters not in issue, should be disregarded as surplusage, nevertheless the portion of the verdict here attacked as being surplusage made a finding of fact germane to the issues; and the court did not err in refusing to disregard such portion of the verdict when entering judgment thereon.

3. While a verdict that is contradictory and repugnant is void and no valid judgment can be entered thereon, yet there is no repugnancy in the present verdict, which determined title to the land in controversy and also the issue as to whether defendant's building encroached upon plaintiff's land, where the issue of encroachment was decided by a finding locating a brick pillar on defendant's land with reference to its distance from plaintiff's land. The finding that the brick pillar was six inches from plaintiff's land line, whether correct or incorrect, does not alter the location of the land line, but serves only to determine the issue of encroachment.

4. While the petition alleged trespass and prayed for an injunction, questions which required no finding as to the injunction feature were submitted to the jury, without objection from plaintiff; and therefore the judgment entered on the verdict in the case is not subject to attack because it fails to enjoin the alleged trespass.

No. 13237. MAY 14, 1940. Mrs. Fannie C. Fleming sued J. W. Collins, praying for a decree of title, injunction, and general relief. The petition as amended alleged that plaintiff had acquired, by adverse possession for more than twenty years, title to certain land extending to a described fence between her land and land belonging to the defendant in the City of Albany, Georgia; that the defendant was erecting a porte-cochere to a residence on his lot, and that the southwest brick pillar thereof extended to the fence and line of plaintiff's land; that the eaves of the porte-cochere extended six to eight inches beyond the pillar and over the lands of the plaintiff; and that the defendant was destroying the line fence, and it was sought to enjoin him from so destroying the fence and obliterating the line. The defendant by answer denied the material allegations of the petition, and contended that the true line between his and plaintiff's land was the city-lot line described in the plaintiff's deed. He denied the allegations of encroachment, whether the dividing line was as contended by him or as contended for by plaintiff, which was the old fence line, and averred that his entire building structure was on the east side of the old fence line. He prayed that since the dividing line was in dispute, the court determine and establish the line. He admitted removing a part of the fence, but contended that the plaintiff expressly authorized him to do so. The record in this court does not purport to contain all of the evidence introduced upon the trial, and the bill of exceptions recites that there was other evidence, not shown in the record, pro and con as to the location of the southwest brick pillar of the porte-cochere, with reference to the old fence and as to the distance of the pillar from the fence; and that the trial was halted and the jury permitted to view the premises. The court submitted to the jury two questions: (1) whether the old fence or fence line or the city-lot line was the true dividing line between the two properties; and (2) what was the location of the southwest brick pillar of the porte-cochere with reference to the old fence or fence line. The verdict was as follows: "We, the jury, find in favor of the plaintiff, fixing the east line to be the old fence line and the southwest brick pillar to be six inches east of said old fence line." The plaintiff moved to strike from the verdict the words "and the southwest brick pillar to be six inches east of said old fence line," contending that the portion of the verdict she sought to have stricken was not supported by or responsive to any evidence, pleading, or prayer, and should be regarded as surplusage; and she prayed that when the verdict was thus changed, the court enter a decree that the old fence line be established as the line between plaintiff's lot on the west and defendant's lot on the east, and that plaintiff recover of defendant all of the land lying west of the center of said fence line, and that defendant and his agents be enjoined from trespassing on plaintiff's land and from obliterating any of the marks indicating where the fence had been. After a hearing, the motion was overruled, the verdict was approved and allowed to stand as returned by the jury, and judgment was entered, decreeing the east line of the property of plaintiff to be the old fence line and the southwest brick pillar, which was described in plaintiff's petition as coming to the old fence line, to be six inches east of the said line. To this judgment the plaintiff excepted. 1. The proper procedure for attacking a verdict on the ground that there is no evidence to support it is by a motion for new trial. Beall v. Mineral Tone Co.,167 Ga. 667 (146 S.E. 473); Durden v. Harper, 174 Ga. 570 (163 S.E. 192); Hamilton National Bank v. Robertson,177 Ga. 734 (171 S.E. 293); Reynolds v. O'Neal, 189 Ga. 690 (7 S.E.2d 229). While counsel for the plaintiff discusses at length various portions of the evidence, we do not understand that the plaintiff contends that this court should reverse the judgment excepted to on the ground that the evidence is insufficient to support the verdict. The bill of exceptions recites that the record in this court contains only a part of the evidence introduced on the trial. Therefore this court can render no decision on any question requiring a consideration of the evidence. Furthermore, under the authorities above cited, even if the record contained all of the evidence, its sufficiency could not be tested by a direct bill of exceptions, but that test could be made only by a motion for new trial.

2. If a verdict, in addition to answering the issues involved, contains immaterial findings or findings on matters not in issue, such portions of the verdict should be disregarded as surplusage.Columbus Power Co. v. City Mills Co., 114 Ga. 558 (40 S.E. 800); Fraser v. Jarrett, 153 Ga. 441 (7) (112 S.E. 487). The question whether there is surplusage in the verdict, as contended, can and must be determined from the pleadings and the record before us. The plaintiff averred that the southwest brick pillar of the defendant's porte-cochere, though on defendant's side, extended up to the old fence line, and that the eaves of the porte-cochere extended west a distance of six to eight inches beyond this brick pillar. The defendant denied that any part of his building structure extended west of the old fence line. The pleadings therefore presented an issue as to whether or not the eaves extended over the old fence line, and thus encroached upon the land claimed by the plaintiff. The first portion of the verdict, about which there is no complaint by either party, adjudicated that the plaintiff had title to the land in controversy west of the old fence line, and fixed that line as the dividing line between the plaintiff and the defendant. If the eaves of the porte-cochere extend over this line, the plaintiff's prayer for general relief would authorize a judgment granting relief against such encroachment. This issue could have been determined by simply requiring the jury to find whether or not there was such an encroachment; but the same result was obtained by requiring the jury to locate the brick pillar with reference to the old fence line. Since the plaintiff alleged that the eaves extended six to eight inches beyond the brick pillar, this allegation must be construed as meaning the least encroachment, or six inches. It is apparent that, given the measurement of the defendant's eaves, with the location of this southwest pillar with reference to the fence line, it would be a mere matter of mathematics to determine the issue as to alleged encroachment by the eaves. Therefore when the verdict fixed the distance between the brick pillar and the fence line to be six inches, it was likewise found that the eaves constituted no encroachment over the old fence line. It follows that the portion of the verdict fixing the distance between the southwest brick pillar and the fence line was germane to the issues in the case, and should not have been stricken as surplusage.

3. A verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside. Anthony v. Anthony,103 Ga. 250 (29 S.E. 923). Strong argument is made that the portion of the verdict finding that the brick pillar was six inches from the old fence line was repugnant to the other portion of the verdict fixing the east line of plaintiff's property as the old fence line. It is insisted that the finding thus locating the brick pillar would require an alteration of the other finding to bring the fence line to a point six inches from the brick pillar. There is no basis for the belief that the verdict as returned attempted to or would in fact alter or change in the remotest degree the fixed location of both the old fence line, or east line of plaintiff's property, and the southwest brick pillar of defendant's porte-cochere. As stated above, the first portion of the verdict adjudicated that plaintiff has title to the land west of the old fence line, and fixed that line as the dividing line between plaintiff and defendant. By this finding defendant and those claiming under him are forever precluded, and the issue as made by the pleadings as to the dividing line is thus finally settled. In making the finding as to the distance of the pillar from the fence line no adjudication of title or land lines was made or could have been made, since this issue was determined by the jury's answer to the first question submitted to them. This finding was necessary for the purpose of and constitutes only an adjudication of the issue made by the pleadings as to whether or not the eaves of defendant's building constituted an encroachment. Both the brick pillar and the old fence line are stationary objects, and no amount of pleading or adjudication could serve the purpose of changing the physical location of these objects. This part of the verdict, whether authorized by evidence or not (this being a question that can not be here determined), is a determination of the distance between these two objects. Whether the distance is in fact six inches as found by the jury or some other and different distance, it does not and can not change or alter the physical location of the two objects. It is apparent therefore that the portion of the verdict complained of affects the plaintiff only to the extent that it is a decision adverse to her contention that defendant's building encroaches upon her land as defined by the line fixed by the verdict; and she can not in the face of this verdict hereafter obtain another adjudication of this particular question. Since both parties agree that the pillar is on the defendant's land, it is no concern of the plaintiff whether it is located six inches from her land or at any other place on the defendant's land, since it is not an encroachment on her property. The verdict is not void for repugnancy.

While for the reasons stated it must be held that the verdict is not subject to this attack, yet the judgment entered thereon is open to the attack that the portion decreeing the distance of the southwest brick pillar of the porte-cochere from the old fence line is surplusage and is not authorized by the issues in the case. The issue authorizing this part of the verdict was that of encroachment. Based upon the verdict, the judgment should have been that there was no encroachment. Accordingly, direction is given to the court below to modify the decree to make it conform to this ruling.

4. The plaintiff makes the further attack upon the judgment excepted to, because it fails to enjoin the defendant as prayed in her petition. The court required the jury to answer two specific questions, as authorized by the Code, § 37-1104. Unless the jury's answer to these questions would authorize an injunction, since there is nothing in the record to indicate any complaint by the plaintiff as to the sufficiency of the questions propounded, this contention is without merit. Dozier v.McWhorter, 117 Ga. 786 (6) (45 S.E. 61). There is nothing in the verdict remotely intimating whether or not the plaintiff's allegations of trespass are true. In the absence of a finding on these allegations the court would not be justified in entering a decree enjoining the defendant as prayed.

Judgment affirmed, with direction. All the Justices concur.