Foster v. Case

55 S.E. 921, 126 Ga. 714, 1906 Ga. LEXIS 521

• Court: Supreme Court of Georgia
• Decided: November 12, 1906
• Status: Published

Opinion

Lumpkin, J.

1. When a will has been probated in common form, and the sole heir at law, by petition to the court of ordinary, has called upon the executor to probate it in solemn form, and has filed a caveat, a suit by the executor against such heir at law to recover property devised in the will may, in a proper case, be enjoined until the issue of devisavitvel non has been determined. Hooks v. Brown, 125 Ga. 122. This, however, is not an arbitrary rule, but a matter resting in the sound discretion of the court, under the facts of the particular case.

2. In this ease there was no abuse of discretion in refusing to grant the injunction as prayed, but, instead thereof, enjoining the executrix from, paying out or otherwise disposing of any of the assets until further order.

3. Rulings on a demurrer or a motion to dismiss in the nature of a demurrer to an answer to an equitable petition as a whole, and also certain parts thereof, are not reviewable on a “fast writ” of error. If, under the law and evidence applicable to the case, there was no error in denying an injunction, no reversal can be had on the ground that the presiding judge refused on the hearing to strike certain parts of the answer, upon motion made therefor.

Judgment affirmed.

All the Justices concur.