Bowman v. Bowman

• Decision Date: 22 April 1949
• Docket Number: 32398.
• Parties: BOWMAN v. BOWMAN.
• Court: Georgia Court of Appeals

53 S.E.2d 244

79 Ga.App. 240

BOWMAN v. BOWMAN.

No. 32398.

Court of Appeals of Georgia, Division No. 1.

April 22, 1949

Rehearing Denied May 12, 1949.

Syllabus by the Court.

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 re-instated, on the sole ground that it had been dismissed 'inadvertently and through mistake', it was 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.

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, re-instating 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 re-instate 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.

Jas. L. & Will G. Moore, Atlanta, for plaintiff in error.

Poole, Pearce & Hall, Margaret Hills, Atlanta, for defendant in error.

PARKER Judge.

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 of 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 the superior court properly reversed the ruling of the ordinary and correctly held that the original caveat was erroneously re-instated 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 orginal 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...