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Goolsby v. Nails

Supreme Court of Georgia
Oct 9, 1961
122 S.E.2d 248 (Ga. 1961)

Opinion

21355.

SUBMITTED SEPTEMBER 11, 1961.

DECIDED OCTOBER 9, 1961.

Complaint for land. Appling Superior Court. Before Judge Thomas.

Ogden Doremus, Aaron Kravitch, for plaintiffs in error.

Milton C. Grainger, contra.


1. Where a copy of a will is introduced into evidence without having been certified by the clerk of the court of ordinary, it is not legal evidence of title even though admitted without objection, the same having no probative value.

2. The verdict is amply supported by competent evidence, hence, there is no merit in the general grounds of the motion for a new trial.

SUBMITTED SEPTEMBER 11, 1961 — DECIDED OCTOBER 9, 1961.


James Clark Goolsby, Janie Goolsby Von Bergen, Sarah Goolsby Herman and Gertrude C. Goolsby brought suit in the Superior Court of Appling County against Don C. Nails and Mildred Nails for damages resulting from trespass and wrongful cutting of timber. The case came on for trial, evidence was introduced for the plaintiffs and for the defendants, and after arguments a verdict was directed against the plaintiffs and the jury returned a verdict in favor of the defendants on a counterclaim for trespass based upon prescriptive title. A motion based on the general grounds and two special grounds for a new trial was made and denied. To the judgment denying their motion for a new trial the plaintiffs except.


1. The special grounds complain of the direction of the verdict against the plaintiffs and a charge pertaining thereto. Such direction and charge were based on the theory that no evidence of legal title in the plaintiffs was introduced, and thus no cause of action could be maintained by them for trespass and wrongful cutting of timber. At the trial evidence was introduced by the plaintiffs showing the location of the tract of land from which the timber was cut and the amount of timber cut therefrom. The plaintiffs then introduced a copy of a will dated May 14, 1932, under which they claimed a direct chain of title. They further introduced a copy of a judgment dated October 19, 1932, passing title of the disputed land to the testator of the will. The plaintiffs then rested their case.

The will through which the plaintiffs solely base their title was accompanied by a certificate which contains the following language. "Georgia, Appling County. I, Frances Dubberly, Deputy Clerk, Superior Court, Appling County, Georgia, do hereby certify that the within is a true and correct photostatic copy of the original will that remains of record in the ordinary's office. So certified this December 14, 1956. Frances Dubberly, Deputy Clerk, Superior Court." On the face of the will was the following language. "Recorded in Minute Book No. 3 Pages No. 381-384."

In order to use a will as a muniment of title, a copy certified by the clerk of the court of ordinary must be introduced showing the probate of the will. Bryan v. Walton, 14 Ga. 185; Phillips v. Babcock Bros. Lumber Co., 5 Ga. App. 634 ( 63 S.E. 808); Code §§ 24-1801, 24-1804. However, a copy of a will duly certified that it came from the court of ordinary's office raises the presumption that such will has been probated. But such copy must be certified by the clerk of the court of ordinary, who has jurisdiction over such records. Robertson v. Hill, 127 Ga. 175, 176 ( 56 S.E. 289); Thursby v. Myers, 57 Ga. 155(2) [Bleckley absent]. In the instant case the copy is not certified by the clerk of the court of ordinary nor does such certified copy show probate of the will. Such copy cannot be legal evidence of title. Hester v. Young, 2 Ga. 31 (2). This is true even though this evidence was introduced without objection, since it does not have any probative value, and as such, is no good for the purpose offered. Crawley v. Selby, 208 Ga. 530 ( 67 S.E.2d 775). There being no evidence that the plaintiffs were in possession of the subject property at the time of the alleged trespass by the defendants, the trial court did not err in directing a verdict against them.

2. The general grounds complaining of the verdict given on the cross-action are without merit. The defendants in error alleged that they had been in actual adverse possession of the tract of land under dispute for more than seven years prior to the filing of this action by the plaintiffs in error, and that their possession had been public, open, notorious, continuous, exclusive, peaceable, and uninterrupted during the said period of more than seven years, and that their possession of said premises had been in good faith under a claim of right, to wit, a warranty deed from Mrs. Dora L. Dixon to the defendants. They further alleged that their possession had been evidenced by the fencing of the same, cultivation of crops, and the working and cutting of timber. The defendants further alleged that the plaintiffs had entered this tract of land and cut and removed therefrom sawmill and pulpwood timber of the reasonable value of not less than $2,000. They prayed for damages in that amount, that they be adjudged and decreed by the court to be seized and possessed of a prescriptive title in fee simple to the 73.08 acre tract of land herein referred to, and that the plaintiffs be permanently enjoined from trespassing on the property. These allegations were supported by the evidence.

It was not error to deny the motion for a new trial.

Judgment affirmed. All the Justices concur.


Summaries of

Goolsby v. Nails

Supreme Court of Georgia
Oct 9, 1961
122 S.E.2d 248 (Ga. 1961)
Case details for

Goolsby v. Nails

Case Details

Full title:GOOLSBY et al. v. NAILS et al

Court:Supreme Court of Georgia

Date published: Oct 9, 1961

Citations

122 S.E.2d 248 (Ga. 1961)
122 S.E.2d 248

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