Bowman v. Bowman

• Decision Date: 10 November 1953
• Docket Number: No. 18391,18391
• Citation: 78 S.E.2d 801,210 Ga. 259
• Parties: BOWMAN et al. v. BOWMAN.
• Court: Georgia Supreme Court

Page 801

78 S.E.2d 801

210 Ga. 259

BOWMAN et al. v. BOWMAN.

No. 18391.

Supreme Court of Georgia.

Nov. 10, 1953.

Rehearing Denied Nov. 25, 1953.

Second Motion for Rehearing Denied Dec. 8, 1953.

Jas. L. & William G. Moore, Atlanta, for plaintiffs in error.

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

Syllabus Opinion by the Court.

WYATT, Presiding Justice.

This case has had a long and involved history in the appellate courts of this State. On June 10, 1948, Joanne W. Bowman filed her application in the Court of Ordinary of Fulton County for a year's support to be set apart to her out of the estate of her deceased husband, Frank K. Bowman. Fred E. Bowman, brother of the deceased, filed a caveat to the application for a year's support. The caveat was dismissed by the caveator. Sometime later, Fred E. Bowman moved that the caveat be reinstated, the ordinary granted the motion, and an order was entered denying the award of a year's support. Upon appeal to the superior court, the judgment of the ordinary permitting the caveat to be reinstated and denying the award of a year's support was reversed. That judgment was affirmed by the Court of Appeals in Bowman v. Bowman, 79 Ga.App. 240, 53 S.E.2d 244. On June 8, 1948, Fred E. Bowman filed application in the Court of Ordinary to probate in solemn form the will of Frank K. Bowman dated November 1, 1946. The alleged will devised all of the property of Frank K. Bowman to Fred E. Bowman. Joanne W. Bowman filed a caveat to the will. The will was admitted to probate by the ordinary. The caveator entered an appeal to the superior court, and upon the completion of the trial a verdict was directed against the caveatrix. This judgment was reversed by this court. Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298. Mrs. Joanne W. Bowman then filed an equitable petition against Fred E. Bowman seeking to cancel a certain quitclaim deed executed by Frank K. Bowman to Fred E. Bowman conveying the interest of the said Frank K. Bowman in certain described property to Fred E. Bowman, and seeking the appointment of a receiver and an accounting. A temporary receiver was appointed and the defendant temporarily restrained from interfering with the possession of the receiver. That judgment was reversed by this court on the ground that the allegations of the petition were not sufficient to show that the plaintiff had the required interest in the property or was the proper party to bring this suit. Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497. Mrs. Joanne W. Bowman then filed a second equitable petition, seeking the cancellation of the quitclaim deed above referred to and the appointment of a receiver. The defendant demurred to the petition and the demurrer was overruled. This court affirmed that judgment, holding that, since the petition showed that there had been a final judgment on the probate of the will dated November 1, 1946, and that a judgment setting aside a year's support had been entered and duly recorded in the court of ordinary, the petition set out a cause of action for some of the relief sought. Bowman v. Bowman, 207 Ga. 226, 60 S.E.2d 242. The defendant then filed a motion to dismiss the petition and a plea of res judicata, contending that the decision in Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497, was a bar to the second equitable petition. The superior court denied the motion to dismiss and the plea of res judicata. That judgment was affirmed by this court. Bowman v. Bowman, 209 Ga. 200, 71 S.E.2d 84. The instant case in this court arises upon the trial of the second equitable petition filed by Mrs. Joanne W. Bowman. In the instant case, the jury returned a verdict in favor of the plaintiff and judgment was rendered in her favor. The defendant filed his motion for new trial on the general grounds and amended by adding fifteen special grounds. The motion for new trial as amended was denied. The exception here is to that judgment. Held:

1. It is contended, under the general grounds of the motion for new trial, that the evidence is insufficient for the reason there is no evidence as to the final adjudication of the will of Frank K. Bowman dated February 27, 1946, and that there was no evidence to the effect that Frank K. Bowman died intestate. As the instant case now comes to us, both these issues are immaterial. The party seeking to cancel the deed is the person to whom the particular property has been set apart as a year's support. She is not now seeking to recover as a sole heir at law. It was, therefore, not necessary to prove either of these matters. The evidence as to the other issues in the case was sufficient to authorize the jury to find in favor of the plaintiff.

2. The charge of the court is not specified as a necessary part of the record, and is not so-included. Therefore, special grounds 2, 3, 7, 9, 10, 11, 12, and 15, making various complaints relating to the charge of the court, can not be considered.

3. Special ground one complains because the court denied a motion for nonsuit. 'An exception based upon the refusal of the court to award a nonsuit will not be considered, where subsequently thereto the case is submitted to the jury, and after verdict being for the plaintiff a motion for a new trial is made which presents the complaint that the verdict is contrary to the evidence and without evidence to...