Opinion
17117.
JUNE 13, 1950.
REHEARING DENIED JULY 13, 24, 1950.
Cancellation, etc. Before Judge Moore. Fulton Superior Court. March 7, 1950.
James L. Will G. Moore, for plaintiffs in error.
Margaret Hills and Poole, Pearce Hall, contra.
1. The allegations of the petition as amended — showing rendition of a final judgment denying probate of the will, dated November 1, 1946, and that the judgment setting apart the property as a year's support had been made the judgment of the court of ordinary and had been duly recorded in the ordinary's office — were sufficient as against general demurrer to set forth a cause of action for the appointment of a receiver to preserve the property pending final adjudication on probate of the alleged will dated February 27, 1946, and cancellation of the quitclaim deed.
2. Accordingly, since the petitioner was entitled to some of the relief prayed for, the trial court did not err in overruling the defendant's demurrer. Arteaga v. Arteaga, 169 Ga. 595 (4) ( 151 S.E. 5); Rowland v. Rowland, 204 Ga. 603 (6) ( 50 S.E.2d 343).
Judgment affirmed. All the Justices concur.
No. 17117. JUNE 13, 1950. REHEARING DENIED JULY 13, 24, 1950.
Other phases of this litigation have previously been before the Supreme Court and Court of Appeals in Bowman v. Bowman, 205 Ga. 796 ( 55 S.E.2d 298), 206 Ga. 262 ( 56 S.E.2d 497), and 79 Ga. App. 240 ( 53 S.E.2d 244). On January 9, 1950, Joanne W. Bowman filed in Fulton Superior Court, against Fred E. Bowman, individually and as executor, a petition in three counts seeking among other things cancellation of a quitclaim deed, and appointment of a receiver.
The defendant demurred on the ground that neither the petition as amended nor any of the counts set forth an equitable or legal cause of action against him. The demurrer was overruled, and the exception is to that judgment.