Tucker v. Lefebre

The judgment of the court was pronounced by Eustis, C. J. This is an action of boundary, instituted by the plaintiff, who is the administrator of the succession of Abner Robinson, deceased, against the defendants, who are adjacent proprietors. The plaintiff and co-defendants acquiesce in the judgment of the court of the first instance: Lefebre alone has appealed. His counsel has confined himself to an application to have the cause remanded, on the ground that no judgment can be rendered in the present condition of the suit, inasmuch as the requisites of the code have not been complied with in the .appointment .and procés verbal of a sworn surveyor, as required by article 837 of the code, and has referred to the case of McDonogh v. Degruys, 4th Ann. 33. In the present case the report or procés verbal with a map was prepared by a surveyor on a survey by him made, under an appointment which was not formally authorised by the court; nor hasthe procés verbal the requisite number of witnesses. But the report was admitted in evidence without objection, and the surveyor examined as .a witness, and testimony was received pro and con on the trial of the cause. It appears the appellant was present at the survey and gave directions to the surveyor in relation to his work. He has thus had the full benefit of the evidence to which he now objects. We think the objection comes too late. As the survey and procés verbal were sufficiently definite to enable the court of the first instance to fix the boundaries; and as no error has been shown in its judgment, the" same must be affirmed. Judgment affirmed, with costs.