Jackson v. Warthen

• Decision Date: 14 May 1900
• Parties: JACKSON v. WARTHEN et al. WARTHEN et al. v. JACKSON.
• Court: Georgia Supreme Court

36 S.E. 234

110 Ga. 812

JACKSON v. WARTHEN et al.

WARTHEN et al. v. JACKSON.

Supreme Court of Georgia

May 14, 1900

Syllabus by the Court.

1. When a cross bill of exceptions presents a question which is "controlling upon the case as a whole," the supreme court will first consider and dispose of that question; and if the judgment of the trial court with respect thereto is reversed, the main bill of exceptions will be dismissed.

2. Where the ordinary has duly complied with the statutory requirements as to issuing citation and publishing notice with regard to an application for a year's support, it is too late, after the adjournment of the term of his court to which the citation is returnable, to file objections to the granting of such application. (a) There was, in the present case, no consent to the filing of such objections after the expiration of the time allowed by law for so doing; nor under the circumstances disclosed by the record, was the applicant for the year's support estopped from so asserting.

Error from superior court, Walker county; W. M. Henry, Judge.

Application by S. A. Warthen and others for allowance of a year's support. James U. Jackson filed exceptions. On trial there was a verdict for applicant, and Jackson assigns error, and S. A. Warthen and others assign cross error. Judgment on cross bill reversed, and main bill of exceptions dismissed.

Copeland & Jackson, W. T. Turnbull, and W. W. Brookes, for plaintiff in error.

R. M W. Glenn and Payne & Payne, for defendants in error.

LUMPKIN P.J.

Mrs. S A. Warthen made an application to the court of ordinary of Walker county for the allowance of a year's support to herself and two minor children out of the estate of her deceased husband. The ordinary issued and caused to be duly published a citation calling upon all persons concerned to show cause at the January term, 1899, of his court why the application should not be granted. He also appointed appraisers, who in due time set apart a year's support, and made their report. Before the arrival of the January term, W. W. Brookes, as attorney for James U. Jackson, a creditor of the decedent, requested his administrator, S. M. Warthen, "to let the case go over for the January term of the court." The administrator replied that, if it was agreeable to R. M. W. Glenn, the attorney of the applicant for the year's support, he (the administrator) "would consent for such continuance." After the conversation between the administrator and Brookes just referred to, but on the same day, the latter informed Glenn "that he had seen S. M. Warthen, and he and Warthen had agreed that the case be passed at said January term of the court," to which Glenn replied, "I will see Mr. Warthen." On the first Monday in January, 1899, which was the 2d day of that month, Glenn wrote a latter to Brookes, stating that, though there had been a misunderstanding between the administrator and Brookes, he (Glenn) had consented that the case should go over to the February term. At the time of writing this letter, Glenn supposed that objections to the allowance of the year's support had been filed, and he never at any time consented that the same might be filed after the expiration of the January term. It further appears, however, that on the 12th day of January, 1899, Glenn again wrote to Brookes, inquiring whether or not he intended in behalf of Jackson to file objections to the allowance of the year's support. The court of ordinary met and adjourned on the 2d day of January, 1899, and "the case" was, during the term, marked "Continued." On the 20th day of January, 1899, counsel for Jackson filed certain objections to the allowance of the year's support. At the February term the ordinary passed an order disallowing the objections, and directing that the return of the appraisers be recorded as the judgment of the court. The case then went by appeal to the superior court. On the trial there, counsel for Mrs. Warthen moved to strike the objections on the ground that they were filed too late. On the hearing of this motion the facts above recited were made to appear, and the motion was overruled. Some of the objections filed by Jackson were stricken on demurrer, and on the trial of the remaining objections there was a...