Opinion
37725.
DECIDED JULY 20, 1959. REHEARING DENIED JULY 31, 1959.
Processioning. Walker Superior Court. Before Judge Davis. July 29, 1958.
Frank M. Gleason, for plaintiff in error.
Freeman C. McClure, contra.
1. The motion to dismiss the writ of error is denied.
2, 3. The court did not err in denying the motion to dismiss the processioning proceeding, or in permitting the return to be amended by the addition of the certificate of the surveyor.
4-7. The court erred in dismissing the protest. The fact that some grounds are defective would not invalidate the whole protest where at least one ground is good.
8. The erroneous dismissal of the protest rendered further proceedings nugatory.
DECIDED JULY 20, 1959 — REHEARING DENIED JULY 31, 1959.
Rex Henry filed a protest to the return of the processioners who by their return established a line between the lands of protestant and of applicant, C. L. Crabtree. The protest is as follows: "Now comes Rex Henry the owner of adjoining lands, who being dissatisfied with the line as run and marked by the processioners and surveyor in said matter, and within thirty days after processioners have filed their return, and does hereby protest the same, and for grounds of such protest alleges:
"1. That B. G. Justus, who represents himself to be the County Surveyor of Walker County, Georgia, is not in truth and in fact the county surveyor of said county because he has not qualified for said office, as required by Section 23-1101, Georgia Code Annotated, in that: (a) He has given a bond in the amount of $500 when Section 23-1104 of the Georgia Code Annotated requires that he give bond in the sum of $1,000. (b) The document which the said Justus files as a `bond' has not been approved by the Ordinary of Walker County, as required by the provisions of Section 89-404, Georgia Code Annotated. (c) The said Justus has not taken the loyalty oath which is required of all officers of the State of Georgia, before undertaking to act as officers of said State, as required by Section 89-315, Georgia Code Annotated, and because the said Justus has failed to take the required oath, he has not qualified in the manner required by law to perform the duties of a county surveyor. 2. That the said Justus employed, to assist him, in pretending to run said lines as county surveyor, Hugh Campbell and Ralph Chandler, as his assistants or deputies. Because Ben Justus had never qualified himself, he was without authority, as county surveyor, to appoint deputies. 3. That irrespective of the invalidity of the appointment of said deputies, they were without authority to act as deputy surveyors in said matter, because they did not take and file in the office of the Ordinary of Walker County in the manner required by law, the same oath as is required to be taken by the county surveyor, all as specified in Code Sections 23-1104, 89-302 and 89-315, Georgia Code Annotated. For this reason, the acts of said deputies were illegal and any survey they pretended to make is null, void and of no effect, and is not entitled to full faith and credit. 4. That the appointment of the said Hugh Campbell and Ralph Chandler as deputy surveyors was not entered on the minutes of the Ordinary of Walker County, Georgia, as required by Section 23-1106, Georgia Code Annotated, and their acts as such are null, void and of no effect, and are not entitled to full faith and credit, as official acts. 5. That the said W. R. Stotts, J. F. Ricketts, and J.N. Madaris, who it is claimed pretended to act as processioners, did not in truth and in fact act as such processioners. They were merely present at the scene of said pretended survey, and Ben Justus took charge of the situation upon his arrival, and gave the orders to the processioners, and consulted with no one, did not hear any evidence, did not take evidence, did not give any credit to ancient landmarks, or physical markings on the face of the earth, and did not mark the lines anew where the lines had formerly existed as required by law, and instead of said persons acting as processioners they were in truth and in fact dummies, who abdicated completely their duties and responsibilities to Justus, who is not even qualified in the first instance to pretend to be surveying a line. 6. That the said W. R. Stotts, J. F. Ricketts and J. M. Madaris did not take due precaution to arrive at the true line, and did not trace out and plainly mark the same. Instead of marking the old line the said Justus created a new one, and his illegal actions in this respect were concurred in by those who were supposed to be acting as processioners. The processioners did not lay out a line from physical marks on the face of the earth, and then mark anew the old line, and one physically established, and their return discloses on its face that there are no physical marks on the face of the earth disclosing where the old line actually is located, notwithstanding the fact that in truth and in fact there are ancient landmarks, to wit, a road which has been in existence for nearly 100 years, and this landmark was completely ignored by the said Justus who refused to mark anew the old line following the direction of the old road which is located in a position hereinafter more fully and particularly described. There were many physical and ancient landmarks following the true line and marked by the old road which could have been followed, but which were ignored by those pretending to act as processioners. 7. That the said Justus and said persons pretending to act as processioners were without power or authority to ascertain and fix new lines, and in fact they were without any authority to pretend to ascertain and fix new lines, because the duty of processioners is `to run and mark lines which at some previous time were located and established' said processioners did not do this and could not do this because there has never been any previous lines run or established at the place where they have designated on said map, and while there is a road at the place indicated on said map, said road was created by the owners thereof as they had a perfect right to do as a private road, but the same was not established as a landmark. 8. That the said processioners who are pretending to act are attempting to create, fix, set up and bring into existence a line which has not heretofore been designated on the face of the earth as a dividing line between the two tracts of land, and are attempting to designate a road as a dividing line, which is truth and in fact never was a dividing line and is south of the original dividing line, and the original landmark which always divided said tract of land. 9. That the line run along protestant's property is not the true line, but on the contrary, the true line begins at a point 146 feet north of a point in the middle of the Rex Henry Road in the middle of which the said Justus placed a stake which is on the west side of the Chattanooga Valley Road. The true line begins 146 feet northeast of this stake, and then runs in a southwestwardly direction a distance of 210 feet to a point in the Rex Henry Road which point is 192 feet northwest of the stake driven in the center of the Rex Henry Road and on the west side of the Chattanooga Valley Road. In other words, the triangular tract of land has been eliminated completely from the northwest corner of the intersection of the Chattanooga Valley Road and the Rex Henry Road and the lines run south of this tract, whereas the old road is on the north side of this triangular tract and is the true dividing line between the property of protestant and the said Crabtree. 10. That the said Justus and said processioners have taken from protestant three-fourths of an acre of land which belongs to him, to which he has been in open, notorious, peaceful, adverse, continuous, quiet and uninterrupted possession of for 76 years. 11. Protestant avers that the true line as specified in this protest was agreed upon and established between him and Bill Kuts more than fifty years ago and that from said date up to the present protestant has been in open, notorious, peaceful, adverse, continuous, quiet and uninterrupted possession of said tract of land, up to the old road 146 feet north of the point where said processioners and said Justus drove the stake on the new Rex Henry Road, and the said predecessor in title of the said Crabtree acquiesced and agreed upon the old road herein specified as the true line, and said old road has been acquiesced and agreed upon as the true dividing line for nearly one-half a century." On the trial of the case in Walker Superior Court on March 3, 1958, the protestant moved to dismiss the proceedings because it appeared from the proceedings themselves that no application was made in writing to the processioners or that an application was sent to any of the processioners by the applicant to establish the line. The motion was denied and the protestant excepts to the ruling. The applicant amended the surveyor's plat adopted by the processioners by having the surveyor to attach his certificate to the plat, which amendment was allowed subject to objection. The protestant excepts to overruling of his objection to the amendment. After the introduction of certain documentary evidence the applicant moved to dismiss the protest on the sole ground that it was wholly insufficient to specify with exactitude the line which protestant contended was the correct line between the parties. After argument the court granted the motion and dismissed the protest. The court then directed a verdict for the applicant. The protestant's motion for new trial as amended was denied, and he excepts to that ruling.
1. The motion to dismiss the writ of error is denied. The motion is predicated on the fact that the bill of exceptions was retendered to the trial court and returned by him for correction on October 28, 1958, in accordance with objections dated October 16, 1958, and was not retendered until February 23, 1959, a period of more than 30 days. In White v. Griggs, 214 Ga. 392 ( 104 S.E.2d 890) the Supreme Court ruled: "The longest time a party has from the date a bill of exceptions is returned to him for correction or completion during which he may retender it is no more that the period allowed by law (30 days) for the tender of the original bill of exceptions, unless a longer time should be given for providential cause or imperative necessity; and when a delay of more than thirty days in retender is thus caused, that fact must affirmatively appear in the judge's certificate:" (Emphasis added.) The following facts appear from the bill of exceptions in this case: that on October 28, 1958, the bill of exceptions was retendered to the trial court and refused; that on November 3, 1958, a petition for mandamus nisi was filed in the Court of Appeals to compel the trial judge to sign the bill of exceptions as retendered; that on December 2, 1958, the mandamus nisi was denied; that on December 17, 1858, the bill of exceptions was retendered; that on January 23, 1959, the court again returned the bill of exceptions with a qualified certificate; that on January 30, 1959, movant brought a second application for mandamus nisi in this court; that on February 12, 1959, the Court of Appeals refused to enter a rule nisi against the respondent; that on February 23 the bill of exceptions was retendered, and that this certificate was signed April 7, 1959.
Code § 6-1312 provides: "No bill of exceptions shall be dismissed upon the ground that the same was not certified by the judge in the time required by law for tendering and signing bills of exceptions; but if it shall appear from the bill of exceptions that the same was tendered to the judge within the time required by law, a mere failure on his part to sign the same within the time prescribed shall be no cause for dismissal, unless it should appear that the failure to sign and certify the same by the presiding judge within the time prescribed by law was caused by some act of the plaintiff in error or his counsel." Accordingly, the time during which the bill of exceptions was in the hand of the trial court, especially under the circumstances of this case where the plaintiff in error had twice brought mandamus proceedings to compel the court to sign the bill of exceptions in the manner contended by him to be correct, should not constitute a reason for dismissal of the bill of exceptions.
Code § 6-910 provides: "If for any cause the bill of exceptions. shall not be certified by the judge, without fault of the party tendering, such party or his attorney may, by petition, apply to the Supreme Court or the Court of Appeals, as the case may be, for a mandamus nisi, directed to such judge." The movant here twice tested his right to have the bill of exceptions certified in the form which he contended was the proper form, and, although no mandamus absolute was ever issued by this court, the decision of this court pointed out that, as to some of the demands made by the trial court for changes in the bill of exceptions, the movant was entitled to a bill of exceptions in the form urged and contended for by him, although in other particulars he was not so entitled. The movant was thus at least partially successful in resisting the demands of the court for changes in the bill of exceptions. But, whether right or wrong, a litigant has a legal right to test the soundness of his contentions as to the form of the bill of exceptions by mandamus, provided always that the petition for mandamus shows on its face that the movant, successful or not, had probable cause for seeking this remedy. If, on the other hand, the petition for mandamus shows on its face that no such probable cause existed, then the movant could not claim the benefit of the time during which the mandamus action was pending in the appellate court. This does not mean that he must state facts which result in the writ's issuance, but merely that it must not appear from the petition that he was totally without probable cause to believe himself to be entitled thereto. Here lack of probable cause does not exist on the face of the petition; on the contrary, this court did in fact grant a part, although not all, of the relief sought.
As to diligence, and following the rule laid down in White v. Griggs, 214 Ga. 392, supra, that after a bill of exceptions is returned a litigant is entitled to not more than thirty days to make the corrections and retender the same, it appears from the certificate to the bill of exceptions here that the movant showed unusual diligence. Eliminating the time the mandamus actions were pending in the Court of Appeals (because under all the rules applying to limitations of proceedings, the time limited should be tolled during that amount of time the mandamus was in the exclusive control of this court and not of the litigants or the trial court) it appears that the movant used the following periods of time, either to bring his mandamus after the bill of exceptions was returned by the trial court, or to correct and retender it after it was returned by the trial court: 12 days, 6 days, 15 days, 7 days, and 11 days. At no time, omitting the periods of time during which the mandamus action was pending in this court, did as much as 30 days elapse; the consolidated periods of time between return and retender, added together, appear as follows: 12 days, 21 days and 18 days. This includes the time necessary to prepare and file the mandamus petitions after the return of the bill of exceptions. Thus, the facts affirmatively appearing in the trial judge's certificate to the bill of exceptions show two things: first, that the movant never held the bill of exceptions for as long as thirty days between any ruling of the trial court and a tender or retender of the bill of exceptions, but on the contrary acted with reasonable diligence; second, that since the movant could in no way control the length of time consumed by this court to him constituted "imperative necessity." Accordingly, under the rule as laid down in the White case, the bill of exceptions here should not be dismissed.
2. The court did not err in denying the motion to dismiss the processioning proceedings. A presumption arises from the return of the processioners that an application was filed and that the other legal prerequisites to a legal return were complied with and the presumption is conclusive in the absence of evidence to the contrary, as here. McCool v. Wilcher, 27 Ga. App. 96 (2) ( 107 S.E. 365); Caverly v. Stovall, 134 Ga. 677 (4, 5) ( 68 S.E. 442). There was no evidence that there was no application and no notice.
3. It was not error to permit the return to be amended by the certificate of the surveyor. Crumby v. Wilson, 60 Ga. App. 734 ( 5 S.E.2d 99); Thornton v. Hitchcock, 139 Ga. 749 (1) ( 78 S.E. 179).
4. Paragraphs 1, 2, 3 and 4 of the protest are not valid grounds of protest since the surveyor and his deputies, even if the deputies were more than mere employees or helpers, were de facto officers, which fact would not invalidate the return. Philpot v. Wells, 69 Ga. App. 489 ( 26 S.E.2d 155); Tucker v. Roberts, 151 Ga. 753 ( 108 S.E. 222).
5. The part of the protest which contends that the return and plat does not show or indicate the physical marks on the earth is not a good ground of protest. The plat is sufficient if the lines can be definitely located. Norman, Timmons Co. v. Smith, 131 Ga. 69, 73 ( 61 S.E. 1039).
6. The protest is defective in that it does not sufficiently describe the triangular piece of land which protestant claims he is deprived of by the line run by the appraisers. The protest is not defective in not objecting to the whole line set up by the processioners otherwise than on the ground that a new line was run as it will be assumed that the protestant is satisfied with that part of the line to which he does not object on the ground that it was incorrectly marked anew but he must describe the part of the line as he contends it should be marked anew so that it may be definitely located. The best way to do this is by a survey, plat and accurate description of definite starting point and courses and distances or landmarks, etc. Since the protest was not bad as a whole this defect may be corrected by amendment.
7. The protest should not have been dismissed as a whole because the ground of protest that the processioners did not lay out a line from physical marks on the face of the earth and mark anew the old line but established and fixed a new line is a good ground of protest to an appraiser's return. Amos v. Parker, 88 Ga. 754 ( 16 S.E. 200); Smith v. Clemons, 71 Ga. App. 589 ( 31 S.E.2d 621); Anthony v. Wright, 76 Ga. App. 425 ( 46 S.E.2d 194).
8. The erroneous dismissal of the protest rendered further proceedings nugatory.
The court did not err in denying the motion to dismiss the proceeding. The court did not err in allowing the amendment to the processioners' return. The court erred in dismissing the protest.
Judgments affirmed in part and reversed in part. Gardner, P. J., Townsend, Carlisle, Quillian and Nichols, JJ., concur.