Goodman v. Little

• Decision Date: 20 June 1957
• Docket Number: No. 36746,No. 2,36746,2
• Citation: 96 Ga.App. 110,99 S.E.2d 517
• Parties: B. E. GOODMAN, Executor, v. Maye H. LITTLE et al
• Court: Georgia Court of Appeals

Page 517

99 S.E.2d 517

96 Ga.App. 110

B. E. GOODMAN, Executor, v. Maye H. LITTLE et al.

No. 36746.

Court of Appeals of Georgia, Division No. 2.

June 20, 1957.

On September 3, 1951, R. L. Hastey was duly qualified in Harris County, Georgia, as the executor of the estate of Bartis Goodman. On March 21, 1955, the heirs of R. L. Hastey filed their petition in the Harris County Court of Ordinary against Bartis Goodman to show cause (a) why his letters of executorship should not be revoked, or (b) why he should not be required to give bond with good security. On May 23, 1955, the ordinary passed an order requiring Goodman to execute immediately a surety bond in the amount of $20,000. The heirs entered an appeal to the Superior Court of Harris County. On June 13, 1955, certain of the heirs filed their petition in the Harris County Court of Ordinary to require Goodman as executor to make an accounting, and to show cause why he should not make a full settlement of the estate. By consent of the parties, this proceeding was appealed to the Superior Court of Harris County, and the two appeals were consolidated and ordered to proceed under the name and style of the proceeding to remove the executor. On July 24, 1956, the heirs filed a petition in the appeal case pending in the Superior Court of Harris County, in which they alleged that the bond in the amount of $20,000 was insufficient to protect them adequately from loss, because the value of the estate that had gone into the executor's hands was $100,000 and that due to the poor health of the executor, the petition for an accounting and for the removal of the executor could not be heard in the near future. They prayed that the executor be required to show cause why he should not give a bond in an amount equal to twice the value of the estate. The court issued a rule nisi to be heard at his chambers in Muscogee County and upon a hearing of the rule, and upon a hearing of the executor's motions to dismiss the petition and his petition for a jury trial, the trial court dismissed the motions; and, at the conclusion of the hearing, the court entered an order requiring the executor to give an additional surety bond in the sum of $80,000 with 15 days from September 10, 1959, or upon failure to comply with such orders, his letters of executorship would be revoked. The executor failed to give the requisite additional bond and the trial court at his chambers in Muscogee County on October 9, 1956, revoked the letters of executorship and ordered Goodman to make an accounting to the party or parties entitled thereto. Goodman filed his bill of exceptions assigning error upon each of these orders of the superior court.

Being under the misapprehension that equity had been invoked in the superior court by the heirs at law, this court transferred the bill of exceptions to the Supreme Court. The Supreme Court, however, returned the case to this court with the following opinion:

'The jurisdiction of the Court of Ordinary to revoke the letters of executorship, Code, §§ 113-1229, 113-1101, and to require the executor to make an accounting and settlement to the heirs, Code, §§ 113-2201, 113-2202, is limited to the case as one at law. The superior court on the trial of an appeal from the Court of Ordinary has no broader powers than the Court of Ordinary itself had. Maloy v. Maloy, 134 Ga. 432, 68 S.E. 80; Ingraham v. Reynolds, 176 Ga. 772, 773, 168 S.E. 875; Griffin v. Securities Investment Co., 181 Ga. 455, 182 S.E. 594. The case on appeal from the Court of Ordinary brings the whole case up for a new hearing. Code, §§ 6-201, 6-501. In Stansell v. Massey, 92 Ga. 436, 17 S.E. 821, it was said: 'In trying an appeal from a county court, the superior court can reach no result which could not have been reached in the county court had the case been finally disposed of there. It follows that on the trial of such appeal the superior court cannot entertain an equitable petition offered by the defendant as an amendment to a plea of the general issue, which the petition contemplates and prays for relief which only a court of equity, or a court of law exercising full equity powers, could administer, such as the rescission of contracts, the cancellation of promissory notes, injunction, etc.' In McDowell v. McDowell, 194 Ga. 88, 20 S.E.2d 602, it was held that this court had no jurisdiction to review an order...