Fulford v. Sweat, 28887.

• Citation: 16 S.E.2d 102
• Decision Date: 28 April 1941
• Docket Number: No. 28887.,28887.
• Parties: FULFORD. v. SWEAT et al.
• Court: Georgia Court of Appeals

16 S.E.2d 102

FULFORD.

v.SWEAT et al.

No. 28887.

Court of Appeals of Georgia,

Division No. 2.

April 28, 1941.

Rehearing Granted June 20, 1941.

Rehearing Adhered to July 28, 1941.

Syllabus by the Court

The judge of the superior court, on appeal from the court of ordinary, trying the case on an agreed statement of facts without the intervention of a jury, did not err, under the facts, in finding against the discharge of the administrator.

Error from Superior Court, Pierce County; M. D. Dickerson, Judge.

Proceeding by A. J. Fulford, administrator of the estate of Mrs. D. L. Fulford, for discharge, wherein one Sweat and another filed a caveat objecting to the discharge. The ordinary discharged the administrator, and the objectors appealed to the superior court. Judgment denyingdischarge, and the administrator brings error.

Affirmed.

A. J. Fulford was appointed as administrator of the estate of Mrs. D. L. Fulford on January 1, 1940. On April 1, 1940, he filed his petition for discharge. Sweat and Gaskins filed a caveat objecting to the discharge on the ground that the estate was indebted to them on a mortgage for $300, executed by Mrs. D. L. Fulford, which had not been paid. The ordinary discharged the administrator, and Sweat and Gaskins appealed to a jury in the superior court. The judge of the superior court, trying the case without a jury, rendered a judgment against the discharge of the administrator. The court tried the issue on an agreed statement of facts which showed a dispute between the parties as to whether the mortgage had been discharged by an agreement between Sweat and Gaskins and the administrator. It was agreed by counsel that the issue in the case was whether the court of ordinary could adjudicate such a disputed claim in such a proceeding. The administrator excepts to the judgment finding against the discharge of the administrator.

Lee S. Purdom, of Blackshear, for plaintiff in error.

Eldon L. Bowen and Memory & Memory, all of Blackshear, for defendant in error.

FELTON, Judge.

1. The trial in the superior court was a de novo proceeding in which the jurisdiction of the court was the same as that of the court of ordinary. The judgment was that the court of ordinary had no jurisdiction to decide the issue as to whether the mortgage had been settled. Under the facts of the case, there was no error in the judgment so finding and in refusing to discharge the administrator. Neither the ordinary nor the court of ordinary has jurisdiction to decide an issue as to whether or not one is or is not indebted to an estate, in a proceeding between the representative of the estate and an alleged creditor. Brooks v. Brooks, 184 Ga. 872, 193 S.E. 893; Durham v. Durham, 107 Ga. 285, 287, 33 S.E. 76; Lyons v....