Opinion
32398.
DECIDED APRIL 22, 1949. REHEARING DENIED MAY 12, 1949.
Appeal; from Fulton Superior Court — Judge Moore. January 15, 1949.
James L. and Will G. Moore, for plaintiff in error.
Margaret Hills, Poole, Pearce Hall, contra.
1. Where one who has filed a caveat to an application for a year's support at the first term of the court voluntarily dismisses it, and moves at the second or third term thereafter to have the caveat reinstated, on the sole ground that it had been dismissed "inadvertently and through mistake," it is error to grant such motion over timely objection by the applicant; and the superior court on appeal did not err in so holding.
2. Objections to the allowance of a year's support must be filed at or before the term to which the citation is returnable, and a caveat filed at a later term was too late and should have been dismissed on timely motion by the applicant.
DECIDED APRIL 22, 1949. REHEARING DENIED MAY 12, 1949.
Joanne W. Bowman applied to the Ordinary of Fulton County on June 10, 1948, for a year's support to be set apart to her from the estate of her late husband, Frank K. Bowman, deceased. Appraisers were appointed, who made and returned their award on that date, and citation was issued and published as required by law. Fred E. Bowman, a brother of the deceased, filed a caveat to the application and objected to the allowance of said year's support, on July 6, on the ground that he held a deed from Frank K. Bowman to the real estate included in the award and return as made by the appraisers; and alleging that Frank K. Bowman did not have any right, title, or interest in said property at the time of his death. The applicant demurred to the caveat on the ground that it set forth no legal objection to the setting apart of the year's support. On August 13, the caveator amended his caveat by setting up additional reasons why the year's support should not be allowed. The applicant objected to the amendment on the ground that the original caveat set forth no legal objection to the setting apart of the year's support, and did not contain enough to amend by, and renewed her demurrer to the original caveat. Thereafter, on September 10, the caveator voluntarily dismissed and withdrew his original caveat as amended, and then filed a new caveat on substantially the same grounds as those set out in his amendment to his first caveat. On the order of the ordinary allowing the amendment to the original caveat, below the order but above or to the side of the signature of the ordinary, are the words, "withdrawn and dismissed." The applicant moved to dismiss the last caveat on the ground that the application for the year's support was returnable to the July, 1948, term of the court, and that said caveat was not filed on or before the first term, but was filed two terms after the first term and too late for consideration by the court. On September 23, the caveator filed a petition setting up that he had inadvertently and through mistake dismissed his caveat on September 10, and alleging that said caveat set out a good and valid objection to the year's support, and that there had never been any order by the court dismissing the same, and he prayed that said dismissal be set aside and the original caveat be reinstated. The court entered an order on October 8, after oral argument, reinstating the original caveat as amended, and overruled the demurrers to the original caveat and the amendment thereto. Thereafter, on October 18, the ordinary passed an order sustaining the caveat and disallowing the application. The applicant appealed from these decisions of the ordinary to the superior court, which reversed the case, holding that the ordinary did not have authority to reinstate the original caveat as amended after it had been withdrawn and dismissed by the caveator, and also holding that the ordinary should have sustained the demurrer of the applicant to the last caveat filed on September 10. To these rulings the caveator excepted.
1. "An appeal to the superior court is a de novo investigation. It brings up the whole record from the court below, and . . either party is entitled to be heard on the whole merits of the case." Code, § 6-501. This is true of appeals in general and of appeals from courts or ordinary. Moody v. Moody, 29 Ga. 519 (1). The superior court may hear and sustain a demurrer which has been previously heard and overruled in the county court. Paxton v. Berrien County, 117 Ga. 891 (2) ( 45 S.E. 266).
We think that the superior court properly reversed the ruling of the ordinary and correctly held that the original caveat was erroneously reinstated after it had been voluntarily dismissed by the caveator. The record shows that the dismissal of the caveat was in these words: "The within caveat is withdrawn and dismissed by caveator, Fred E. Bowman, without prejudice. This 10th day Sept., 1948. Jas. L. Moore, Atty. for Fred E. Bowman." Counsel say in their brief that this dismissal was entered on the original caveat. In Simpson v. Brock, 114 Ga. 294 ( 40 S.E. 266), it was said that, "When a plaintiff, by his counsel, voluntarily dismisses his petition, whether for a good or a bad reason, the court has no authority, over objection by the defendant, to reinstate the action." To the same effect, see Petty v. Piedmont Fertilizer Co., 146 Ga. 149 (1) ( 90 S.E. 966); Colclough v. Bank of Penfield, 160 Ga. 303 ( 127 S.E. 752); Yatesville Banking Co. v. Fourth Nat. Bank of Atlanta, 17 Ga. App. 420 (2) ( 87 S.E. 606); Stewart v. Hasty, 77 Ga. App. 524 (2) ( 48 S.E.2d 757).
It is argued by counsel for the plaintiff in error that, since no order dismissing the caveat was taken, the case was still pending before the court. But the facts are that the caveator withdrew and dismissed the first caveat, and treated and regarded it as having been withdrawn and dismissed by filing another caveat, and the words, "withdrawn and dismissed," appear above or to the side of the signature of the ordinary on the order allowing the amendment. It is further contended that the court had the authority to reinstate the case notwithstanding its dismissal, and counsel cite and rely upon Warner v. Graves, 25 Ga. 369, 371, Vanzant, Jones Co. v. Arnold, Hamilton Johnson, 31 Ga. 210 (1), Williams v. Rawlins, 33 Ga. 117 (10), 123, Armstrong v. Lewis, 61 Ga. 680 (2), Brooks v. Brooks, 175 Ga. 313 ( 165 S.E. 106), and Head v. Yeomans, 186 Ga. 335 ( 6 S.E.2d 704). We have considered these cases carefully and we do not think that they are applicable to the facts of this case, or that they require a holding different from the one made herein. They miss the mark in this case, and "a miss is as good as a mile."
2. Upon the filing of the appraisers' return the ordinary shall issue citation and publish notice for four weeks citing all persons concerned to show cause why the application should not be granted, "and if no objection is made after the publication of said notice for four weeks, . . the ordinary shall record the return so made in a book to be kept for this purpose." Code, § 113-1005. This Code section "has several times been construed by this court with respect to the time within which objections must be filed, and it has been held that they must be filed at or before the term to which the citation is returnable. Parks v. Johnson, 79 Ga. 567 ( 5 S.E. 243); Jackson v. Warthen, 110 Ga. 812 (2) ( 36 S.E. 234); Foster v. Turnbull, 126 Ga. 654 ( 55 S.E. 925); Reynolds v. Norvell, 129 Ga. 512 (3) ( 59 S.E. 299). In Jackson v. Warthen, supra, it was held that, `unless objections are duly filed, nothing is left for the ordinary to do but record the return of the appraisers, which then becomes, in effect, a binding judgment, conclusive upon all persons interested.'" Howell v. Howell, 190 Ga. 371, 374 ( 9 S.E.2d, 149). In this case the court ordered "that citation issue herein and be published as the law requires," and this order was dated June 12, 1948. It is not necessary to decide whether such citation could have been published four weeks before the first Monday in July, 1948, or whether it was returnable to the August term of the court. See Code, § 24-2101. In all events, it was returnable either in July or August and before the term of the court which began on the first Monday in September. It is clear, therefore, that the second caveat, which was filed on September 10, 1948, was too late and should have been dismissed. The superior court did not err in ordering that the demurrers to that caveat be sustained.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.