Opinion
67728.
DECIDED APRIL 30, 1984. REHEARING DENIED MAY 17, 1984.
Probate of will. Coffee Superior Court. Before Judge Blount.
Douglas W. Mitchell III, T. V. Williams, Jr., for appellant.
James D. Hudson, Frank T. Holt, M. L. Preston, for appellee.
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 S.E.2d 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 S.E.2d 263) (1978); Dennis v. McCrary, 237 Ga. 605 (1) ( 229 S.E.2d 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 S.E.2d 436) (1975)) or a motion for a new trial, the probate court lacked 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 S.E.2d 458) (1972); Foster v. Allen, 201 Ga. 348 (1) ( 40 S.E.2d 57) (1946).
Judgment affirmed. McMurray, C. J., and Deen, P. J., concur.