In re Lott

318 S.E.2d 688, 171 Ga. App. 25, 1984 Ga. App. LEXIS 2087

• Court: Court of Appeals of Georgia
• Decided: April 30, 1984
• Docket: 67728
• Status: Published

Opinion

Sognier, Judge.

Appellant filed a petition in probate court to set aside or amend the probate of a will in order to prove a newly found codicil or will. Appellant was not a party to the original probate. The probate court dismissed the petition for lack of jurisdiction. On appeal to the superior court, appellant amended his petition to seek a new trial. The superior court affirmed the dismissal of appellant’s petition and appellant appeals.

Appellant contends that the trial court erred by ruling that the superior court and the probate court lacked jurisdiction to set aside the probate of the will based on the lost codicil being found. This case is controlled contrary to appellant’s contentions by Byrd v. Riggs, 210 Ga. 473 (80 SE2d 785) (1954). Appellant did not allege that the judgment probating the will in solemn form should be set aside or vacated because it was obtained by fraud or other illegality. See Daniel v. Daniel, 242 Ga. 479 (1) (249 SE2d 263) (1978); Dennis v. McCrary, 237 Ga. 605 (1) (229 SE2d 367) (1976). The sole basis for the motion was the newly discovered evidence of the later codicil or will. Whether the motion was denominated a motion to set aside (see Vaughan v. Car Tapes, 135 Ga. App. 178, 180 (3) (217 SE2d 436) (1975)) or a motion for a new trial, the probate court lacked jurisdiction to entertain it. Byrd, supra; OCGA § 5-5-1. On appeal, the jurisdiction of the superior court was limited to that of the probate court. Dennis, supra at 606 (2); Payne v. Payne, 229 Ga. 822, 824 (194 SE2d 458) (1972); Foster v. Allen, 201 Ga. 348 (1) (40 SE2d 57) (1946).

Decided April 30, 1984 Rehearing denied May 17, 1984 Douglas W. Mitchell III, T. V. Williams, Jr., for appellant. James D. Hudson, Frank T. Holt, M. L. Preston, for appellee.

Judgment affirmed.

McMurray, C. J., and Deen, P. J., concur.