Broome v. Shropshire

69 S.E.2d 201, 208 Ga. 729, 1952 Ga. LEXIS 322

Opinion

Duckworth, Chief Justice.

1. On the former appearance of this case in this court (Shropshire v. Broome, 207 Ga. 313, 61 S. E. 2d, 284), the bill of exceptions was dismissed because the overruling of a demurrer to the caveat was not a final judgment, and the judgment that the caveat alleged a good defense became the law of the case.

2. The evidence offered by the caveator was sufficient to sustain the allegations of the caveat and—if believed by the jury—would have been sufficient to support a verdict, and the court erred in directing the verdict in favor of the propounder. Sims v. Georgia Ry. & Electric Co., 123 Ga. 643 (51 S. E. 573); Brooks v. Rawlings, 138 Ga. 310 (75 S. E. 157); Pierpont Mfg. Co. v. Mayor &c. of Savannah, 153 Ga. 455 (112 S. E. 462); Lawrence v. Boswell, 155 Ga. 690 (118 S. E. 45); Sewell v. Anderson, 197 Ga. 623 (30 S. E. 2d, 102).

3. In the cross-bill, the exception is without merit, since the court did not err in overruling the motion to strike paragraph (4) of the caveat on the ground that it sought to construe the will—the allegations being that there was a mistake of fact, and there being no prayer for construction of the will but merely one to refuse probate.

Judgment reversed on the main bill and affirmed on the cross-bill.

All the Justices concur.