Habersham v. Wetter

• Decision Date: 31 August 1877
• Parties: William N. Habersham et al, executors, plaintiffs in error. v. Augustus P. wetter, guardian, et al., defendants in error.
• Court: Georgia Supreme Court

59 Ga. 12

William N. Habersham et al, executors, plaintiffs in error. v. Augustus P. wetter, guardian, et al., defendants in error.

Supreme Court of the State of Georgia

August Term, 1877.

[Jackson, J., did not preside on account of relationship to the wards of Wetter, guardian, within the fourth degree of consanguinity.]

Judgment. New trial. Practice in the Superior Court. Practice in the Supreme Court. August Term, 1877.

Reported in the opinion.

Jackson, Lawton & Basinger; Hartridge & Chisholm; William Grayson Mann, for plaintiffs in error.

R. E. Lester; T. M. Norwood; N. C. Collier; W. W. Montgomery; J. R. Saussy; R. H. Clark; O. A. Cochrane, for defendants.

HILLYER, Judge.^*

When this case was reached in its order for argument, counsel for defendant in error moved to dismiss the writ of error, on the ground that it was prematurely brought, alleging that the cause was yet pending in the court below.

It appears from the record, that Wm. N. Habersham and Wm. Hunter propounded in the court of ordinary of Chatham county, a paper purporting to be the last will and testament of Mary Telfair, deceased, and in their petition naming and citing various persons as heir at law, but not naming the children of Alberta Wetter.

A caveat was filed by a portion of those cited, to-wit: George Noble Jones and Alfred Cuthbert. Alterwards, on the first of November, 1875, in the same court, Augustus P. Wetter filed his petition, asking to make the children of *said Alberta Wetter parties to the proceeding, and caveators to said will; and the court granted an order and made them parties accordingly, appointing said Augustus P. Wetter their guardian ad litem. A separate caveat was filed by said guardian ad litem. The case was heard in said court of ordinary, and the will put to record. An appeal was had to the superior court of Chatham county. The case came on be heard on the appeal on the 6th of June, 1877.

After the evidence was all in, counsel for the propounders moved the court to dismiss the caveat of said Wetter, on the ground that it appeared by his petition, and by all the evidence in the case, that the said Wetter children were not the next of kin, but that the remaining caveators were. The court overruled the motion. The trial proceeded, and there was a verdict in terms setting out and finding in favor of the caveat of said Wetter children, and against the caveat of said Jones and Cuthbert. The propounders moved for a new trial, and also in arrest of judgment. Afterwards, upon argument had, the court granted a new trial and dismissed the motion in arrest of judgment. In ordering the new trial, the presiding judge incorporated in his order a provision granting leave to counsel for said Wetter, guardian ad litem, to enter up judgment on the verdict, but directing that when so entered up, said judgment stand superseded until the further order of that court.

It appears in the record that afterwards, on the same day judgment in due form was written out, in which it was adjudged that the paper propounded as the last will and testament of Mary Telfair, is not her last will and testament; and concluding with directions for the certifying and enforcing of the same in the court of ordinary, and which judgment is unconditional on its face, and signed by said judge.

The propounders prosecute this writ of error, seeking a reversal of that judgment, and also assigning error upon the refusal of the court to dismiss the Wetters out of the case *on motion of the propounders, as above recited, and in dismissing the motion in arrest of judgment. The grounds are variously stated, but they are deducible to these.

This court is of the opinion that when a will is propounded, and a caveat filed against the probate of the same by a number of persons as caveators, whether joining in the same caveat, or proceeding separately, if one should be dismissed out of the case, the cause itself would not thereby be terminated, and such order of dismissal would not be a final judgment, ending the case, within the meaning of section 4250 of the Code.

It has been held by this court, Stancil v. Kenan, 35th Ga., p. 102, that where one of several caveators died, the case did not thereby abate, but that the executor might proceed, and that if a judgment was thereafter rendered, the other caveators continuing as parties, that the probate was good. But, however this may be, in the present case the executors adopted as their remedy a motion lor a new trial, and obtained it. For the purpose of the questions here made, there is very little difference between the motion for a new trial...