Hensley v. McHan

Atkinson, J. 1. No error was assigned upon any ruling made dining the trial. The evidence authorized the verdict. 2. In an action for the value of timber alleged to have been cut by the defendant from the plaintiff’s land, where the controlling issue turned upon the proper location of the dividing line between the lands of the plaintiff and the defendant, the affidavits of proeessioners, together with their return and the surveyor’s plat purporting to show that the true line was as claimed by the plaintiff, can not be considered as newly discovered evidence on a motion for a new trial made by the plaintiff, when it appears that the processioning was done subsequently to the trial of the case. (a) It does not alter the case that there had been an attempt, previously to the trial, to procession the land by other proeessioners, and in such attempt the proeessioners insisted that the line contended for by the plaintiff was the true line, while the surveyor insisted that the line contended for by the defendant was the correct one, and on account of these differences the surveyor refused to make a plat, and consequently the proeessioners had not made their return before the trial so it could be used at that’time as evidence. Judgment affirmed. All the Justices concur.