Warnock v. Watson

25 Ga. 467

• Court: Supreme Court of Georgia
• Decided: June 15, 1858
• Status: Published

Opinions

By the Court.

Benning, J.

delivering the opinion.

. The first ground of the motion to dismiss the appeal, was abandoned in this Court.

Was the Court below right, on the other grounds, in dismissing the appeal, and in remanding the case to the Court of Ordinary ?

We think not.

Process had issued to the infant from the Court of Ordinary, calling upon her to contest the nuncuptive'will, if she desired to do so.

She, therefore, was a party to the cause in the Court of Ordinary.

After the decision of the cause in that Court, Green G. "Watson came before the Ordinary, and, as the “next of kin” to the infant, demanded an appeal from the decision; and an appeal was granted to him, and the case was transmitted to the Superior Court.

There was an appeal, then, regularly received by the lower Court, and regularly transmitted to the higher Court.

An appeal carries up the whole case. Therefore, it must carry up all the parties to the case.

This appeal, then, in carrying up this case, carried up the infant, as one of the parties to the case.

The case, including the parties to it, being thus regularly carried up, the appellate Court obtained jurisdiction of the case including the parties to it.

These things being so, suppose it true, that, as Watson had no interest, the appeal ought to have been dismissed as to Mm, did it thence follow, that it ought to have been dismissed as to the infant ? Certainly not. She had an interest. She had the only interest; and dismissing the appeal as to her, would not have been determining the appeal “ according to law and right," the mode, according to which, the statute says, that appeals from the Court of Ordinary, must be determined. Pr. Dig. 238.

We think, then, that the Court ought not to have dismissed the appeal as to the infant, but only as to Watson; and, that, after dismissing the appeal as to Watson, the Court should have appointed a guardian, ad litem for the infant, and have let the case proceed in her name, as the appellant.

Perhaps, the appointment of Jones, as guardian mi litem% may still answer, so far as the appointment of such a guardian, is concerned.

As to the main matter, however, we see no necessity for remanding the case to the Court of Ordinary. We think, thait the case may be well perfected in the appellate Court; and that both right and expediency require, that it should be perfected there; and then, that it should proceed to an end in. regular course.

Judgment reversed.