Whaley v. Ellis

209 Ga. 147 (1952)

71 S.E.2d 209

WHALEY v. ELLIS et al.

17872.

Supreme Court of Georgia.

Submitted May 12, 1952.

Decided June 9, 1952.

J. Paxson Amis, for plaintiff in error.

Mitchell & Mitchell, contra.

ATKINSON, Presiding Justice.

Mrs. Ruby Ellis and Waymon Ellis filed in Murray Superior Court, against Mrs. J. M. Whaley, a petition, count one of which was to enjoin a continuing trespass, and count two was in ejectment. The petitioners and the defendant are conterminous landowners. A controlling question was the location of the line running north and south between the petitioners' land in land lot 77, and the defendant's land in land lot 78. When the case first came on for trial, the parties and their attorneys in open court entered into the following agreement: "R. E. Smith is appointed to locate the north and south lines between the lots Nos. 77 and 78 at issue in this case, and make his report to this court, and the parties hereto are to be bound by said survey and the survey is to be the line between the property of these parties. Costs of survey to be borne by each equally." Smith made a survey and filed a plat in the office of the clerk of the superior court. When the case came on for final trial, the judge after hearing evidence made the survey the judgment of the court. The defendant excepted to the judgment as being contrary to law and the evidence, and insists that the trial judge should have remanded the case to a jury with the report of the surveyor to be introduced in evidence, subject to objections, as provided by law. Held:

*148 The parties by agreement having eliminated all issues in this case except the issue as to the location of the dividing line, the Court of Appeals and not this court has jurisdiction of the writ of error. Code (Ann.), §§ 2-3704, 2-3708; Colley v. Atlanta & West Point R. Co., 156 Ga. 43 (118 S. E. 712); Lewis v. Fry, 194 Ga. 842 (22 S. E. 2d, 817); Johnson v. Woodward Lumber Co., 202 Ga. 288 (42 S. E. 2d, 639); Edenfield v. Lanier, 203 Ga. 348 (46 S. E. 2d, 582); Graham v. Lynch, 205 Ga. 230 (52 S. E. 2d, 850); Ledford v. Hill, 206 Ga. 304 (57 S. E. 2d, 77); Miller v. Ray, 208 Ga. 27 (64 S. E. 2d, 449).

Transferred to the Court of Appeals. All the Justices Concur.