Jenkins v. Lane

• Decision Date: 08 February 1920
• Docket Number: (Nos. 1656, 1657.)
• Parties: JENKINS. v. LANE et al. LANE et al. v. JENKINS.
• Court: Georgia Supreme Court

150 Ga. 533

104 S.E. 195

JENKINS.

v.LANE et al.

LANE et al.

v.JENKINS.

(Nos. 1656, 1657.)

Supreme Court of Georgia.

Sept, 28, 1920.

(Syllabus by Editorial Staff.)

Error from Superior Court, Dooly County: O. T. Gower, Judge.

Action by M. E. Lane and others against John A. Jenkins, Jr., for the recovery of land and for other relief. Verdict and decree for plaintiffs on the sole issue submitted, as to whether they were entitled to recover the land, and defendant's motion for a new trial overruled, and he brings error, and plaintiffs take a cross-bill of exceptions. Main and cross bills of exceptions dismissed, with leave to file certified copies thereof in the superior court as exceptions pendente lite.

Jule Felton, of Montezuma, Powell & Lumsden, of Vienna, and Hall & Grice and C. J. Bloch, all of Macon, for plaintiff in error.

Whipple & McKenzie, A. S. Bussey, and Crum & Jones, all of Cordele, for defendants in error.

FISH, C. J. Civil Code (1910) § 6138, declares:

"No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto; but, at any stage of the cause, either party may file his exception to any decision, sentence, or decree of the superior court; and if the same is certified and allowed, it shall be entered of record in the cause; and should the case at its final determination be carried by writ of error to the Supreme Court by either party, error may be assigned upon such bill of exceptions, and a reversal and new trial may be allowed thereon, when it is manifest that such erroneous decision of the courthas or may have affected the final result of the case."

This is an equitable action, brought by the petitioners, as legatees and heirs at law of John A. Jenkins, Sr., deceased, against John A. Jenkins, Jr., for the recovery of some 2, 850 acres of land deeded by the testator to the defendant, and for the rents and profits of the land; also for the recovery of certain personalty claimed to belong to the estate of the testator, the personalty amounting to some $12,000. An accounting was asked from the defendant as to all of the property claimed to belong to the decedent's estate, both as to the realty and the personalty. Petitioners alleged that the two executors refused to bring the action, and were colluding with the defendant in his contention that the property was his, and that the estate had no interest in any of it. The appointment of a receiver was prayed, to...