Barksdale v. Cobb
| Decision Date | 31 August 1854 |
| Docket Number | No. 3.,3. |
| Citation | 16 Ga. 13 |
| Parties | Terrill Barksdale, plaintiff in error. vs. William A. Cobb, Ordinary of Upson County, defendant in error. |
| Court | Georgia Supreme Court |
Mandamus, in Upson Superior Court. Decision by Judge Starke, at Chambers, February 22d, 1854.
The petition for mandamus set forth that Mrs. Macharine Bunckley departed this life in Upson county, in the year 1850. That a paper purporting to be the will of Mrs. Bunckley had been propounded for probate in the Court of Ordinary of said County, to which a caveat had been filed, and that the issue made thereon was now pending on the appeal in Upson Superior Court. That the petitioner made application to William A. Cobb, Ordinary of Upson county on the 17th day of August, 1853, for letters of administration ad calle gendum, pendente lite, on the estate of Mrs. Bunckley; that the said Ordinary, Wm. A. Cobb, refused to grant the said letters, and prayed the Court to enjoin and require the said Ordinary to grant the said letters of administration to the petitioner.
In his answer, the Ordinary admitted the facts charged, and set forth the ground upon which he refused to grant the letters, to wit: "Because the securities offered, reside out of the county of Upson, and no security is offered who resides in said County."
The securities offered, all lived in the county of Talbot, adjoining the county of Upson.
The Ordinary also demurred to the mandamus, on the ground that from his decision, refusing to grant the letters of administration, an appeal would lie.
At the hearing, Judge Starke refused to grant the mandamus, and counsel for petitioner excepted.
L. B. Smith, for plaintiff in error.
O. Gibson, for defendant in error.
By the Court.—Lumpkin, J., delivering the opinion.
Two questions only are made in this record. 1st. Was the Ordinary of Upson right in refusing to grant temporary letters, on the ground that the securities, although ample, resided, all of them, in the neighboring county of Talbot? 2d. Was mandamus the proper remedy?
Upon the first ground, we are not prepared to sustain the Ordinary. We think that the bare fact that the securities reside in a different county from the one in which the application is made, is not of itself, a sufficient reason for refusing administration, either temporary or permanent.
We would not be understood as holding, that in every instance, and under all circumstances, the Ordinary should be compelled to accept securities residing out of the County,...
To continue reading
Request your trial
-
Ford Motor Co. v. Lawrence
...(1976) (mandamus not available to review judicial decision denying petition to vacate order committing juvenile to custody); Barksdale v. Cobb, 16 Ga. 13 (1854) (mandamus not available to review refusal of the Ordinary to grant letters of administration pendente lite). See also OCGA § 9-6-2......
-
Hogansville Banking Co. v. City of Hogansville
...he must be without any other specific adequate remedy. Mayor, etc., of Savannah v. State, 4 Ga. 26; Young v. Harrison, 6 Ga. 130; Barksdale v. Cobb, 16 Ga. 13; Adkins Bennett, 138 Ga. 118, 74 S.E. 838; Bearden v. Daves, 139 Ga. 635, 77 S.E. 871. It is true that an action at law will lie in ......
-
Hogansville Banking Co v. City Of Hogansville
...he must be without any other specific adequate remedy. Mayor, etc., of Savannah v. State, 4 Ga. 26; Young v. Harrison, 6 Ga. 130; Barksdale V. Cobb, 16 Ga. 13; Adkins v. Bennett, 138 Ga. 118, 74 S. E. 838; Bearden v. Daves, 139 Ga. 635, 77 S. E. 871. It is true that an action at law will He......
-
Board of Com'rs of Shoshone County v. Mayhew
...delay might forfeit lands. (Ex parte Parker, 120 U.S. 737, 7 S.Ct. 767; Am. & Eng. Ency. of Law, 108, note 2, p. 109, note 1; Barkdale v. Cobb, 16 Ga. 13; High on Legal Remedies, secs. 171, 176, 156; Tandall's Petition, 11 Allen (Mass.), 474.) Not to correct errors if court acts within its ......