Dorsey v. Georgia R. Bank & Trust Co.
| Decision Date | 13 July 1950 |
| Docket Number | Nos. 1,2,No. 33073,33073,s. 1 |
| Parties | DORSEY v. GEORGIA R. BANK & TRUST CO |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The trial judge did not err in allowing the amendment to the motion for a new trial, whereby the name of movant, appearing as 'Georgia Railroad Bank and Trust Company, Executor under the Will of Essage Dorsey,' was changed so that it would be 'Georgia Railroad Bank and Trust Company, in its representative capacity as Executor under the Will of Essage Dorsey,' nor did he thereafter err in overruling the motion to dismiss the motion for new trial.
2. The trial judge did not err in granting the executor's motion for a new trial.
Pierce Brothers, Augusta, for plaintiff in error.
Cumming, Nixon & Eve, James B. Mulherin, Wm. D. Harden, all of Augusta, for defendant in error.
Mary Lou Hawes Dorsey, as the widow of Essage Dorsey, late of Richmond County, Georgia, made application to the Court of Ordinary of said county to have set apart and assigned to her, either in property or money, a sufficiency from the estate of her said husband for her support and maintenance for the space of twelve months from the date of administration of said estate. She alleged that Essage Dorsey died on March 11, 1949, and that the Georgia Railroad Bank and Trust Company is the duly constituted and appointed executor of the estate of said deceased. Said executor acknowledged service of the application for a year's support, on March 29, 1949, and the petition was filed on March 30, 1949. Appraisers were duly appointed and made their return setting apart $75,000 in cash for her support and maintenance for the space of twelve months from the eleventh day of March, 1949. The Georgia Railroad Bank and Trust Company, as executor under the will of Essage Dorsey, filed a caveat objecting to the return of the appraisers on the ground, among others, that the amount of $75,000 was greatly and grossly in excess of that amount which should be set apart to the widow as a year's support, and that the deceased did not spend in excess of $1,800 per year for the support and maintenance of himself and his wife at the time of his death, nor for a period of fifteen years immediately preceding his death; that the amount set apart as a year's support would result in the diminution of the estate so as to defeat the testamentary scheme of the deceased as expressed in his will to the injury of the legatees therein.
The ordinary disapproved the return of the appraisers and reduced the amount of the year's support to $30,000. An appeal was made to the superior court by the executor; and a jury in that court awarded the widow, Mary Lou Hawes Dorsey, $50,000 as a year's support.
'The Georgia Railroad Bank and Trust Company, Executor under the Will of Essage Dorsey,' as appellant, made a motion for a new trial, naming Mary Lou Hawes Dorsey as appellee, and reciting therein that a verdict and judgment had been rendered in Richmond Superior Court against appellant by awarding $50,000 as a year's support to appellee. Counsel for the widow, appellee, moved to dismiss the motion for new trial on the ground that said motion in the name of 'Georgia Railroad Bank and Trust Company, Executor under the Will of Essage Dorsey, appellant, versus Mary Lou Hawes Dorsey, appellee' was not a motion for new trial between the Georgia Railroad Bank and Trust Company in its representative capacity as executor under the will of Essage Dorsey.
The appellant moved to amend its motion for new trial by inserting between the words 'Georgia Railroad Bank and Trust Company' and the words 'Executor under the Will of Essage Dorsey,' the words 'in its representative capacity as' so that the name of movant in the motion for new trial would be 'Georgia Railroad Bank and Trust Company, in its representative capacity as Executor under the Will of Essage Dorsey.' The motion to amend was allowed and the court then overruled the motion to dismiss the motion for new trial, to which rulings the appellee, now plaintiff in error, excepted.
A hearing was had on the motion for new trial and the trial judge granted a new trial and entered the following order: 'After considering the brief of evidence theretofore allowed and filed, it appearing that the verdict allowing a year's support in the said case in the amount of $50,000.00 was not supported by any evidence, in that the testimony of the appellee, Mary Lou Hawes Dorsey rebutted the prima facie evidence consisting of the return of the appraisers setting aside the sum of $75,000.00, which evidence of the said Mary Lou Hawes was not contradicted by evidence of other witnesses except to the extent that such additional evidence established that the amount necessary to support and maintain said Mary Lou Hawes Dorsey, widow of Essage Dorsey, for the space of twelve months from the date of administration, estimated according to the circumstances and standing of the family previous to the death Essage Dorsey, could not under any circumstances exceed $3500.00, and that the said verdict of $50,000.00 was, therefore, excessive and not supported by the evidence.'
The appellee, now plaintiff in error, excepts to the rulings allowing the amendment and overruling the motion to dismiss, as above stated, and to the order granting a new trial.
1. The contention of the plaintiff in error that the motion for a new trial in this case should have been dismissed is without merit. The facts with respect to said motion, the amendment thereto, and the motion to dismiss are fully set out in the above statement of facts. Code, § 81-1308. Metropolitan Life Ins. Co. v. Hall, 191 Ga. 294, 304, 12 S.E.2d 53, 60. A motion for a new trial is a pleading and may be amended at any stage of the cause before final disposition as a matter of right and not merely in the discretion of the court. Allen v. Bone, 200 Ga. 765, 766(1a), 38 S.E.2d 609. See Code, § 81-1301, which provides that either party may at any stage of its cause amend his pleadings in form or substance, where there is enough in the pleadings to amend by. The trial judge did not err in allowing the amendment to the motion for new trial, nor did he thereafter err in overruling the appellee's motion to dismiss the motion for new trial.
2. The second question to be determined is whether the trial judge erred in granting the executor's motion for a new trial in this case. This was the first grant of a new trial, and the law in that respect, as provided by statute, is: 'The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.', Code, § 6-1608. It was ruled in Piedmont Wagon & Mfg. Co. v. Bird, 49 Ga.App. 426, 176 S.E. 109, and reaffirmed in Jenkins v. Brown, 52 Ga.App. 241, 242, 183 S.E. 85, that: 'The appellate courts will not, under any circumstances,...
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