Lavender v. Shackelford

George, J. (After stating the foregoing facts). Two questions are made: First, whether the suit is one at law or in equity; and second, if in equity, whether the judge had authority in vacation to reopen the judgment and to retax the costs. In an [366] action at law, “the.party who shall discontinue, fail, or be cast” in the suit shall be liable for the costs thereof. Civil Code (1910), § 5980. In an equity case, “Special verdicts may be found by the jury, and they may recommend to the court the assessment of costs upon the respective parties. It is the province of the judge, however, to determine upon whom the costs shall fall.” Civil Code (1910), § 5423. “It has been held many times that under this provision of law the judge has a discretion as to the apportionment of costs between parties.” Lowe v. Byrd, 148 Ga. 388, 393 (96 S. E. 1001). In determining whether a suit is one at law or in equity, the court will look to the facts alleged rather than to the conclusions of the pleader. If upon the facts alleged the plaintiff has an adequate remedy at law, the action is at law, though characterized by the pleader as a suit in equity. In the instant case the plaintiff styles his suit" as one in equity. lie prays for extraordinary equitable relief — injunction against trespass and waste, the filing of the report of the processioners, and the making of the report the judgment of the court. Looking to all the facts alleged by the plaintiff and the nature and character of the relief sought, we are of the opinion that the learned trial judge rightly concluded that the case was one in equity. While it is true that generally courts of law are the proper tribunals for the establishment of disputed boundary lines, this court in the recent case of Georgia Peruvian Ochre Co. v. Cherokee Ochre Co., 152 Ga. 150 (108 S. E. 609), held that a court of equity will interpose to ascertain boundaries where, in addition to a naked dispute concerning boundaries, there is some peculiar equity which has arisen from the contract, situation, or relations of the parties. It must be borne in mind that a superinduced equity must exist between the plaintiff and the defendant, to give equity jurisdiction of a boundary dispute; and that an eqitity in favor of the plaintiff against other persons is not sufficient. The prevention of a multiplicity of suits in the ease just cited was recognized as a ground of equitable jurisdiction which will give courts of equity jurisdiction in a boundary dispute. The rule last stated is not, however, universal in its application. If it be conceded that the present case does not fall within the rule recognized in the case last cited, supra, nevertheless the added allegations of fact and the nature and [367] character of the relief authorized by the facts as alleged and as prayed in the petition make the case one in equity. In view of the auditors' finding it can not be held that the court abused his discretion in apportioning the costs. See Lowe v. Byrd, supra; Armstrong v. American Nat. Bank, 149 Ga. 165 (99 S. E. 884). On the second question: The bill of exceptions recites that a general order was duly entered in term time, authorizing the judge in vacation to enter final decree or judgment in the cause, but the general order referred to is neither specified nor sent up in the record.- Under similar circumstances, this court in Laramore v. McKinzie, 60 Ga. 532, assumed that the full record of the suit in which the judgment or decree was made would show, if present, that some regular order was taken in term providing for making the finding of the award the judgment of the court at chambers. We do not rest our decision alone upon the ruling made in that case. There is in the record (bill of exceptions) enough to show that a general order was taken in term timé, authorizing the judge to enter a final judgment' in the cause in vacation. The taxing of costs is properly a matter for final judgment, and the order was authority to entertain and determine in vacation the motion to retax the costs. Judgment affirmed. All the Justices concur.