Shearer v. Griffin

210 S.E.2d 5, 233 Ga. 47, 1974 Ga. LEXIS 670

• Court: Supreme Court of Georgia
• Decided: October 17, 1974
• Docket: 28999
• Status: Published

Opinions

Per curiam.

This is an appeal from a judgment entered in a land-line law suit after trial before a jury. The judgment permanently enjoined appellant and her agents from trespassing upon the land of the appellee, established a dividing line between the lands owned by the parties, and awarded expenses of litigation to the appellee. The appellant comes here by direct appeal and enumerates ten errors.

We affirm the judgment with direction that the award of expenses of litigation be written off.

1. The first enumerated error complains that the appellant’s husband, a witness in the case, was not permitted to remain in the courtroom to assist appellant’s counsel in the trial of the case after appellant’s counsel stated in his place that the assistance of the witness was needed during the conduct of the trial. The witnesses were sequestered, and the sequestration of appellant’s husband, a witness, was within the discretion of the trial judge. There was no abuse of discretion in this case, and this enumerated error is without merit.

2. The second enumerated error complains of the overruling of appellant’s motion for a mistrial because remarks made in his opening statement by counsel for the appellee. The trial judge, in overruling the motion for a mistrial, gave adequate instructions to the jury, and this enumerated error is without merit.

3. Enumerations of error three through eight complain about the allegations and evidence that relate to prior litigation between the parties concerning another land-line dispute on lands adjacent to the lands involved in the present case. The appellant’s contention is that this previous litigation was irrelevant and immaterial to the dispute being tried in the instant case. Having reviewed this record, we find that this prior litigation and its result were not wholly immaterial to the dispute being tried, and these enumerated errors are without merit.

4. Enumerated errors nine and ten relate to the issue of expenses of litigation. The appellant moved for a directed verdict of this issue which was overruled, and the appellant then excepted to the charge of the court to the jury on this issue. Code § 20-1404 provides: "The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”

Prior to the trial the parties stipulated and agreed that each had title to his respective tract of land and that the issue involved was the location of the dividing line between them. Also the evidence introduced did not demand a verdict for the plaintiff. On these facts, there has been no showing of bad faith. Colbert Co. v. Newsom, 125 Ga. App. 571, 593 (188 SE2d 266); Moon v. Ga. Power Co., 127 Ga. App. 524, 527 (194 SE2d 348); Royal Ins. Co. v. Cohen, 105 Ga. App. 746, 747 (125 SE2d 709); St. Paul Fire &c. Ins. Co. v. Postell, 113 Ga. App. 862, 863 (149 SE2d 864); American Casualty Co. v. Seckinger, 108 Ga. App. 262 (132 SE2d 794); Lincoln Life Ins. Co. v. Anderson, 109 Ga. App. 238 (3) (136 SE2d 1); U. S. Fidel. &c. Co. v. Biddy Lumber Co. 114 Ga. App. App. 358, 359 (151 SE2d 466); U S. Fire Ins. Co. v. Tuck, 115 Ga. App. 562, 574 (155 SE2d 431). See also Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 316 (127 SE2d 454); Belch v. Gulf Life Ins. Co., 219 Ga. 823, 828 (136 SE2d 351); Home Indemnity Co. v. Godley, 122 Ga. App. 356, 363 (177 SE2d 105), cert. den. 122 Ga. App. 905; and Boston-Old Colony Ins. Co. v. Warr, 127 Ga. App. 364 (193 SE2d 624), cert. den. 127 Ga. App. 889.

Argued July 8, 1974 — Decided October 17, 1974. Reinhardt, Whitley & Sims, Glenn Whitley, for appellant. Jack Knight, for appellee.

For an instance where the award of expenses of litigation is proper see Buffalo Cab Co. v. Williams, 126 Ga. App. 522 (191 SE2d 317), cert. den. 126 Ga. App. 871.

The trial court erred in authorizing the jury to award expenses of litigation under Code § 20-1404.

Judgment affirmed with direction that the award of expenses of litigation be written off.

All the Justices concur, except Undercofler, Gunter and Ingram, JJ, who dissent from Division 4 of the majority opinion.