Hall v. First Nat. Bank of Atlanta

• Decision Date: 28 February 1952
• Docket Number: No. 1,No. 33896,33896,1
• Citation: 85 Ga.App. 498,69 S.E.2d 679
• Parties: HALL v. FIRST NAT. BANK OF ATLANTA
• Court: Georgia Court of Appeals

Page 679

69 S.E.2d 679

85 Ga.App. 498

HALL v. FIRST NAT. BANK OF ATLANTA.

No. 33896.

Court of Appeals of Georgia, Division No. 1.

Feb. 28, 1952.

Mrs. Nellie Goins Hall applied for a year's support, service on which was acknowledged by First National Bank of Atlanta as executor of the applicant's husband. No objections were filed to the return of the appraisers up to the first day of the June term of the Fulton County Court of Ordinary and the ordinary on that day, June 4, 1951, rendered a judgment allowing the return and the same the same was recorded. On June 25, 1951, during the said June term of said court, the executor filed a petition seeking to have the judgment allowing the year's support and ordering the return recorded set aside so that it could file a caveat to the return. This petition alleged no reason why a caveat had not been sooner filed. On June 28, 1951, the executor amended the petition to set aside said judgment and filed a caveat to the return of the appraisers. The petition to set aside the judgment allowing the year's support, as amended, alleged that the return was excessive and that the judgment giving a year's support was obtained by a false allegation in the application, to the effect that the petitioner was entitled to a year's support, in that the petitioner and her husband entered into an agreement under which the petitioner accepted certain payments to her as a complete settlement of temporary and permanent alimony. Mrs. Hall filed a motion to dismiss the petition to set aside the judgment allowing the year's support, and a general demurrer thereto. The ordinary overruled the motion and the general demurrer and rendered a judgment vacating the judgment allowing the year's support. Mrs. Hall entered her appeal to the Superior Court of Fulton County. After a hearing a judge of the Superior Court of Fulton County rendered the following judgment: 'In this case, Nellie Goins Hall, widow of James Oscar Hall, brought an appeal from the Court of Ordinary to the Superior Court of Fulton County in which she stated that she was dissatisfied with the judgment and order of the Ordinary of Fulton County entered June 28, 1951, which was adverse to her in that it revoked and vacated the order and judgment of said court entered on June 4, 1951. It is contended by said appellant that this court should vacate and set aside the judgment passed by the ordinary in revoking and vacating the orders which had been passed by him. This court is of the opinion that the court of ordinary, as a court of record, has control over its orders and judgments during the term in which they are made and in the exercise of sound discretion, may revise or vacate the same. This court will not hold, as a matter of law, that the ordinary abused his discretion in vacating and setting aside this judgment during the term in which said judgments were rendered. Therefore, it is ordered and adjudged that the appeal of Mrs. Nellie Goins Hall is overruled and the case is remanded to the court of ordinary for further disposition.' Mrs. Hall excepts to this judgment.

Lucian J. Endicott, Atlanta, for plaintiff in error.

W. K. Meadow, Spalding, Sibley, Troutman & Kelley, James...