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FRANKLIN et al. v. TOWE et al.
29665.
UNDERCOFLER, Presiding Justice.
Injunction. Union Superior Court. Before Judge Gunter.
Herschel Towe et al. filed a complaint against G. C. Franklin et al. seeking ejectment, damages, and a temporary and permanent injunction to prevent further trespass on the complainants' land. The jury returned a verdict in favor of the complainants and fixed the boundary line between the parties. The trial court enjoined the defendants from maintaining a certain ditch on the west boundary of the complainants' property. The appeal is from this judgment. Held:
1. The evidence in this case was in conflict as to the location of the boundary line between the parties and the evidence was sufficient to authorize the jury to locate the boundary line is established in their verdict. Therefore, the verdict was supported by the evidence and the trial court did not err in refusing to direct a verdict in favor of the defendants and in overruling their motion for judgment notwithstanding the verdict.
2. When the jury returned its verdict and while they were still in the jury box, it was determined that the boundary line was not definitely established by the verdict and the judge inquired of the foreman of the jury their intention. The judge told the jury what wording was necessary to carry out their intention and instructed the jury that the redrafted wording would have to have the approval of each member of the jury. Each juror stated that the remolded verdict was his intention. Under the facts of this case, there was no error in this procedure.
3. The appellants contend that the trial court erred in allowing certain parol testimony in evidence but no objection was made to its introduction during the trial. Therefore, this court cannot review its admissibility.
Jack Tarpley, Robert K. Ballew, Roger E. Bradley, for appellants.
SUBMITTED FEBRUARY 17, 1975 -- DECIDED MARCH 12, 1975.
Friday May 22 10:08 EDT


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