Fendley v. Weaver

Jordan, Presiding Judge. 1. Where the controlling issue, as limited by stipulation and as acutally litigated in the lower court, is the correct location of a boundary line between adjacent tracts of land, and the verdict and judgment in effect do nothing more than establish the boundary line and award damages to the successful litigants, an appeal from the judgment comes within the jurisdiction of the Court of Appeals. 'Code Ann. §§ 2-3704, 3-3708; Whaley v. Ellis, 209 Ga. 147 (71 SE2d 209); Lively v. Thompson, 209 Ga. 425 (73 SE2d 90). 2. The plat prepared by the county surveyor, which he identified as one prepared at the request of parties to the litigation,, but not one which is shown to conform to the requirements of Code § 23-1112 or Code § 24-3384 (Superior Court Rule 84) is admissible in evidence as a part of and illustrative of the oral testimony of the surveyor. Durden v. Kerby, 201 Ga. 780, 782 (41 SE2d 131). Moreover, the line established by this plat (Plaintiffs’ Exhibit, No. 1) is shown by the evidence to be substantially identical with the line established by another plat (Plaintiffs’ Exhibit No. 3) which one of the defendants used in conveying a part, of his land to the other defendant. No error is asserted on the admission in evidence of this other plat, and any objection thereto for any reason was apparently abandoned. In this respect the surveyor who prepared the plat, who testified for the defendants, conceded that the line on the plat he prepared was substantially the same line as the line on the plat prepared by the county surveyor. For this additional reason, applying the “same evidence” rule, the defendants have no-cause for complaint on the refusal of the court to exclude the-first plat. See numerous annotations under Code § 70-203, catchwords “Same evidence.” 3. The asserted error on the refusal of the court to grant a non-suit is also without merit. Section 135 (dd) of the Civil Practice Act (Ga. L. 1966, pp. 609, 690; Ga. L. 1967, pp. 226, 246; Code Ann. § 81A-201 (dd)) specifically eliminates non-suit from our practice. 4. The evidence authorized a verdict in favor of the plaintiffs. Judgment affirmed. Whitman and Evans, JJ., concur. Eva, L. Sloan, for appellants. Gardner & Peugh, Milton F. Gardner, for appellees.