Walker v. Maddox-Rucker Banking Co.

23 S.E. 897, 97 Ga. 386

• Court: Supreme Court of Georgia
• Decided: December 2, 1895
• Status: Published

Opinion

Gober, J.

1. It appearing from the record that upon a proceeding instituted in the court of ordinary by certain creditors of an estate, a judgment was rendered removing the plaintiff in error from his office as executor of that estate, from which, judgment he entered an appeal to the superior court, which was still pending at the time of the hearing of a petition for an injunction to restrain the executor from selling valuable lands, belonging to the estate; and it also appearing that various and important questions, both of law and fact, are involved in the. appeal case, there was no abuse of discretion in granting an interlocutory injunction, the effect of which was to preserve-the existing status of the estate until after the rendition of a final judgment in the appeal case, whereby the questions above, referred to will be conclusively adjudicated as between all the parties at interest.

2. The entering of the appeal and the giving of a bond for that, purpose, while operating as a supersedeas and thus suspending-the judgment of removal, did not vacate that judgment so as to authorize the executor to proceed, without restriction, with the further administration of the estate.

3. Under the present writ of error, whether or not the ordinary has the power at all, under the provisions of section 2511 of' the code, construed in connection with paragraph 2 of section 331 and section 2448, to remove an executor, or whether the proceeding to remove this executor should have been instituted under section 2447 alone, are collateral questions only and not now for decision. Judgment affirmed.

Dorsey, Brewster & Hotoell, J. G. Walker and Sanders McDaniel, for plaintiff in error. Olay & Blair, Arnold & Arnold and King & Anderson, contra.