Ingraham v. Reynolds

• Decision Date: 20 March 1933
• Docket Number: No. 9269.,9269.
• Citation: 176 Ga. 772,168 S.E. 875
• Parties: INGRAHAM et al. v. REYNOLDS
• Court: Georgia Supreme Court

176 Ga. 772

168 S.E. 875

INGRAHAM et al.

v.REYNOLDS

No. 9269.

Supreme Court of Georgia.

March 20, 1933

.

.

Syllabus by Editorial Staff.

Certified questions from Court of Appeals.

Proceeding by F. L. Ingraham, administrator, and others, against N. M. Reynolds, administrator. To review a judgment in favor of N. M. Reynolds, administrator, the first designated parties bring error to the Court of Appeals, which certifies questions.

Questions answered.

The Court of Appeals certified to the Supreme Court the following questions:

1. Where the heirs at law of a deceased intestate filed a caveat to an annual return of the administrator, alleging mismanagement of the estate on the part of the administrator, and praying for his removal; and where, upon the filing of such caveat and petition for removal, the ordinary cited the administrator to a settlement of his accounts, and upon a hearing thereof approved the return of the administrator in part and disapproved it in part, refused the prayer for removal of the administrator, and reserved for future decision a contention made by the caveators that the administrator had forfeited all commissions by failing to make regular annual returns; and where, on appeal to the superior court by the administrator, the case was referred to an auditor, who found in favor of the administrator upon all issues involved, and the caveators filed exceptions of law and of fact to the report of the auditor, which exceptions were dismissed and overruled by the trial judge in the superior court on the ground that the case was one in equity in which the parties dissatisfied with the findings of the auditor were not entitled, as a matter of right, to have the jury pass upon their exceptions of fact without the approval of the judge; and where the judge of the superior court there after entered a "judgment and decree" confirming the report of the auditor, and finding that the administrator had fully administered the estate, and directing that the balance found to be due the administrator be paid out of a special fund arising from the estate, which had been impounded in the hands of the clerk of the superior court, and that stipulated fees be also paid to counsel for the administrator out of such fund, and that the administrator "be and he is hereby discharged as administrator of said estate" --would the Court of Appeals have jurisdiction to entertain a writ of error brought by the caveators to review such final judgment of the superior court?

2. If the foregoing question should be answered in the affirmative, would the attorneys to whom fees were allowed and ordered paid out of the funds in court be necessary parties to the writ of error?

Abram Levy, of Augusta, for plaintiff in error.

W. M. Howard and W. K. Miller, both of Augusta, for defendants in error.

HILL, Justice.

The answer must be in reply to the question as asked. This court has said that it is not required to look into the record to ascertain additional facts, but will merely answer the questions properly framed as they are stated. Hubbard v. Bibb Brokerage Co., 172 Ga. 520, 524, 157 S. E. 649; Georgian Co. v. Jones, 154 Ga. 762, 763, 115 S. E. 490.

The jurisdiction conferred upon the court of ordinary in citations for settlement, etc., "is statutory, not constitutional." Echols v. Almon, 77 Ga. 330, 1 S. E. 269, 272. The superior court on the trial of an appeal from the court of ordinary has no broader powers than the court of ordinary itself has. Lester v. Toole, 20 Ga. App. 381, 93 S. E. 55. "Ordinarily an action at law can not be changed into a suit in equity,...