Harnesberger v. Davis

70 S.E.2d 615, 86 Ga. App. 41, 1952 Ga. App. LEXIS 869
CourtCourt of Appeals of Georgia
DecidedApril 25, 1952
Docket33994
StatusPublished
Cited by2 cases

This text of 70 S.E.2d 615 (Harnesberger v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harnesberger v. Davis, 70 S.E.2d 615, 86 Ga. App. 41, 1952 Ga. App. LEXIS 869 (Ga. Ct. App. 1952).

Opinion

Gardner, P. J.

The first question presented is whether or not the defendants in error, the appellants in the Superior Court of Lincoln County, upon an appeal from the ruling and judgment of the Ordinary of Lincoln County to that court, 'could properly appeal from this order and judgment of the ordinary granting the application of the plaintiff in error (the appellee in the superior court and the petitioner before the ordinary), for leave to convey certain lands, which had been previously set apart as a year’s support to herself and six minor children; or whether they should have applied to the superior court for the writ of certiorari directed to the ordinary. It is insisted by the plaintiff in error that certiorari was the only and exclusive remedy or method by which the defendants in error could obtain a review of the order, ruling and judgment of the ordinary granting to the plaintiff in error leave to convey these lands.

The plaintiff in error filed her petition with the ordinary for leave to convey the lands which had theretofore, in 1923, been [45]*45set apart by the Ordinary of Lincoln County as a year’s support for herself, as the widow of B. T. Harnesberger, and their six minor children, under and pursuant to the provisions of Code § 113-1002. This petition for leave to convey was brought under the provisions of the act of 1937 (Ga. L. 1937, p. 861 et seq.; Code, Ann. Supp., §§ 113-1023 et seq.), which act provides that, where property is set apart as a year’s support to a widow and minor children, in order for the same to be conveyed and such conveyance be binding upon the minor children, such conveyance shall be approved by order of the ordinary; and provides for a hearing before the ordinary and the interposition of objections; and also provides that, when the ordinary is satisfied that the service and notice of the petition for leave have been proper and that the purpose of the conveyance is proper, “he shall pass an order” approving the proposed conveyance, “which order shall be final and conclusive.” The act further provides that “An appeal shall lie to the superior court in the manner, under the restrictions, and with the effect provided for appeals from the ordinary in other cases.” Code (Ann. Supp.), § 113-1029.

This proceeding is brought by a widow directly to the ordinary under the provisions of said statute (Ga. L. 1937, pp. 861 et seq.; Code, Ann. Supp., §§ 113-1023 et seq.), for leave to convey certain lands which had been set apart as a'year’s support for herself and six minor children, who were at the time sui juris, to which objections were interposed, and on the hearing the' ordinary granted said application for leave to convey. Thereupon, within the time allowed by law, the objectors or caveators (now the defendants in error) appealed from the order, ruling and judgment of the ordinary to the superior court of the county. This appeal was brought under the provisions of said statute, quoted above (Code, Ann. Supp., § 113-1029). Code § 6-201, relating to appeals from the ordinary in general, provides that “An appeal shall lie to the superior court from any decision made by the court of ordinary, except an order appointing a temporary administrator; provided that whenever an appeal shall be taken from a decision of the ordinary, made under section 113-1229, such appeal shall not operate as a supersedeas, unless the executor or administrator shall first give a good and sufficient bond, payable to the ordinary and his successors in office, in such sum [46]*46as the ordinary may require (not exceeding the amount of the estate in the hands of the administrator), conditioned to pay all costs and damages that may accrue to the estate pending the appeal.” So it is specifically provided by statute that an appeal—as provided for under the provisions of Code § 6-201 and under the law generally as to appeals from a ruling, order, judgment and decision of the ordinary and court of ordinary— will lie from a ruling, order and judgment of the ordinary in a proceeding under the provisions of the act of 1937, supra, in which the ordinary has rendered a final judgment. This being true, regardless of whether—had there been no such statutory provisions specifically applying to a case arising under this act—a certiorari or an appeal would have been the proper remedy or method of seeking a review, this is a case where the remedy or method of obtaining a review has been clearly provided for by statute, and by the very statute under which the proceedings were instituted and the controversy arose, and the statute in such a case governs. In Harrell v. Pickett, 43 Ga. 271, the Superior Court ruled that “the proper mode of bringing before the Superior Courts of this State the judgment of an Ordinary, rendered in the discharge of duties devolved upon him, in relation to county matters, previously vested in the 'Inferior Courts, or of matters not touching the probate of wills or administration, or otherwise specially provided by law, is by certiorari, and not by appeal.” (Italics ours.) The court, specifically excepted from the ruling therein made the judgments and decisions of the ordinary touching the probate of wills, granting of letters testamentary and of administration, and other judgments and decisions the remedy or method of review whereof had been “otherwise specially regulated by law.” That decision plainly recognized a situation like the one now at bar, where the statute, providing that the widow shall apply to the ordinary for leave to convey lands set apart as a year’s support for herself and minor children, also makes special provision for a review of any final ruling, order and judgment of the ordinary therein. The Harrell v. Pickett case, supra, was cited and followed in Cunningham, v. U. S. Savings &c. Co., 109 Ga. 616, 619 (34 S. E. 1024). It will be noted that the decision in each of these cases was rendered long prior to the act of 1937, supra, under which the present case arose. It [47]*47is the opinion of this court, therefore, that the judge of the superior court properly overruled the demurrer and motion of the plaintiff in error to dismiss the appeal of the defendants in error in that court,'on the ground that certiorari and not appeal was the proper remedy or method of seeking a review of the judgment of the ordinary therein. In Phelps v. Daniel, 86 Ga. 363, 365 (12 S. E. 584), it is held that “The right to appeal is recognized expressly in the statute by which proceedings for a year’s support are provided for and under which they are to be conducted,” and appeal was proper.

The judge of the superior court did not err in holding that an appeal was a proper method for the defendants in error to seek a review of the judgment of the ordinary, granting to the plaintiff in error leave to convey the lands set apart as a year’s support for herself and the minor children.

When said appeal, which was de novo, came on for hearing in the superior court of said county, the appellants (now defendants in error) introduced three warranty deeds which were made by the appellee (now the plaintiff in error) to the lands set apart by the ordinary of said county in October, 1923, as a year’s support to the plaintiff in error, as the widow of B. T. Harnesberger, and their six minor children, to wit: (1) a warranty deed conveying described lands by the plaintiff in error to J. 0.

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Cite This Page — Counsel Stack

Bluebook (online)
70 S.E.2d 615, 86 Ga. App. 41, 1952 Ga. App. LEXIS 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harnesberger-v-davis-gactapp-1952.