Court of Appeals of Kentucky.
May 25, 1904.
ACTION: Reversed.

Appeal from Circuit Court, Harlan County.

"Not to be officially reported."

Bill to quiet title by G. A. Eversole against S. S. Branson and another. From a judgment for plaintiff, defendants appeal.

The appellee, Eversole, sued the appellants, Branson and Coldiron, and alleged that he was the owner and in possession of a certain tract of land, and sought to be quieted in the possession and enjoyment of it. The appellant Coldiron filed an answer denying that the plaintiff was the owner of the land, or that he was in the actual possession of it, and claimed that he was the owner of a tract of land, and that there was a lap in the boundaries, etc. The petition was filed in December, 1902. At a special term of the court in July, 1903, upon motion of appellants, an order of survey was made, and one Reynolds, a surveyor, was directed to execute it. The special term continued until the August term of court. After the August term of court the appellant Coldiron obtained a copy of the order of survey, and went to a place in Harlan county where he had reason to believe the surveyor would be found, with a view of delivering it to him and having it executed. He learned that the surveyor was seriously ill, and had been taken to his home in Knox county. Consequently the order of survey was not executed. At the November term of court the appellant Coldiron filed his affidavit showing the facts stated, and moved the court for a continuance of the case. He stated that he had not prepared his case for trial, because the survey was necessary to an intelligent understanding of it, and to enable him to take his testimony. The case was in equity. The court overruled his motion for a continuance, and gave judgment against him.

When the order of survey was made, the court evidently was of the opinion that a survey was necessary. Nothing was developed in the record which shows it was unnecessary. In most of the cases involving title to land, a survey is necessary to enable the court or jury to understand the location of the boundary lines of the land. Where a survey is necessary, it is impossible to properly prepare a case for trial without it. The appellants had the right to rely upon the judgment of the court, previously given, that a survey was necessary. When the court changed its mind, the appellants had no time in which to prepare the case for trial. They were not afforded an opportunity to have their side of the case presented for hearing. The court erred in overruling appellant's motion for a continuance, as it was not his fault that the survey was not made.

The judgment is reversed for proceedings consistent with this opinion.


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