Wilkerson v. Wilkerson

190 S.E.2d 140, 126 Ga. App. 172, 1972 Ga. App. LEXIS 1091

• Court: Court of Appeals of Georgia
• Decided: April 3, 1972
• Docket: 46891
• Status: Published

Opinions

Eberhardt, Judge.

This partitioning proceeding, filed in DeKalb Superior Court, sought an order for the sale of lands owned by the parties to the proceeding as tenants in common, alleging that a fair andi equitable division of the property could not be made. It is a statutory proceed: ing under Code § 85-1504 et seq. After a hearing on the petition the court, apparently concluding that a division in kind was feasible, denied the prayers and dismissed the petition and this appeal is from that order. Held:

1. This court has jurisdiction of the appeal. It does not involve title to land, nor is it an equitable proceeding. Anderson v. Anderson, 151 Ga. 518 (107 SE 334); Nash v. Williamson, 212 Ga. 804 (96 SE2d 251).

2. The matter was heard before the judge without a jury. Evidence both pro and con was introduced on the matter of whether a fair and equitable division in kind could be made of the property, raising a factual issue which the trial judge resolved ágainst the petitioners.

On appeal the evidence is to be construed in a manner that will uphold rather than overturn the judgment of the trial court. Engram v. Faircloth, 205 Ga. 577 (2) (54 SE2d 598); Weideman v. Christopher, 78 Ga. App. 548 (51 SE2d 601). There is evidence which supports the judgment, and since the issue was purely a factual one, we must affirm.

Submitted January 31, 1972— Decided April 3, 1972— Rehearing denied May 1, 1972. Wilkinson & Nance, A. Mims Wilkinson, Jr., for appellants. Dunaway, Shelfer, Haas & Newberry, Jerome C. Ware, for appellees.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Hall, P. J., Pannell, Been, Quillian and Clark, JJ., concur. Evans, J., dissents.