Mathews v. Mathews
| Decision Date | 10 November 1975 |
| Docket Number | No. 1,No. 50911,50911,1 |
| Citation | 136 Ga.App. 833,222 S.E.2d 609 |
| Parties | J. J. MATHEWS v. Rudy L. MATHEWS |
| Court | Georgia Court of Appeals |
Oze R. Horton, Hapeville, for appellant.
This case was referred to this court by the Supreme Court as a case sounding in law rather than equity or property. The original petition sought forced accounting by an executrix (appellee herein) on behalf of the other heirs of the estate involved seeking to determine the amount and existence of assets received and expended by the executrix in the management of a part of the estate. The testatrix involved in this case died in 1955, leaving among other assets, a duplex residential building. Half of this duplex was left in a life estate to the executrix (appellee) and the other half to other heirs. Originally, the executrix and her brother (appellant herein) were named co-executors of the will and the brother (appellant) assumed the principal management functions. Apparently due to lax management, by court order, appellant was removed as co-executor with appellee and appellee was named sole executrix. Thereafter, appellee collected rent, paid taxes, caused repairs to be made to the duplex, and otherwise performed duties as executrix. After the executrix had managed the estate for several years, appellant made demand on appellee in 1969 for an accounting in his own behalf as an heir and on behalf of his children for whom appellant was acting as guardian. The general complaint was that none of the heirs had received 'even the first cent' from the income derived from the duplex. In the original hearing in 1969 demand was made for all records pertaining to the management of the estate and voluminous interrogatories were filed by appellant for answer by appellee. After considerable pretrial litigation, the filing of several series of interrogatories and answers thereto, and the surrender of 'all' records in the possession of appellee pertaining to the management of the duplex, the Ordinary of Clayton County found as fact and entered an order, dated June 14, 1969, that all records available to appellee herein had been produced as required by court order, that the executrix (appellee) had made a full and proper accounting, was eligible to continue as executrix, and would continue to make annual returns.
Appellant brought an appeal in the Superior Court of Clayton County. At the time of the hearing, on January 27, 1975, the minor heirs, children of appellant, had all become of age. Therefore, each child was made a party plaintiff as being indispensable to a complete adjudication of the case. On the hearing, though they had filed an answer, none of the children made appearances. The attorney for appellant moved for a continuance because two of the parties plaintiff apparently had not been served with necessary notice. The attorney for appellant, however, acknowledged that he did not represent any party except the appellant herein.
Because of the recusals of all judges of the Superior Court of Clayton County, this appeal was heard by Judge Whalen of the Superior Court of the Griffin Circuit sitting in Clayton County. Judge Whalen, in an extensive and elaborate pre-trial order, determined that the only issue before the court on the appeal from the Ordinary was whether the executrix (appellee) had complied with the order of the Court of Ordinary of Clayton County, dated April 30, 1969, by filing annual accountings for the entire period that she had been serving as executrix including the filing of a bond with good security. Judge Whalen's order expressly excluded the questions of misappropriation of funds of the estate, of misconduct by the executrix, and of an accounting subsequent to 1969, together with a settlement of the estate.
Following trial before a jury on the limited issues set forth above, the trial court found a failure by the plaintiff (appellant) to carry his burden in showing that the returns filed by the executrix for the years up through 1969 were not proper. The plaintiff did not offer or attempt to offer the returns in evidence. Since there was nothing to impeach the returns found by the Court of Ordinary in 1969 to be proper, the 1969 order stood undisputed and the jury was directed to return a verdict for the defendant executrix (appellee). Throughout the trial, the plaintiff (appellant) unsuccessfully sought to show mismanagement, a wilful failure to answer interrogatories, a failure to produce all records and misappropriation of funds by the executrix, contending that an appeal from the Court of Ordinary to the Superior Court authorizes a trial de novo and it was proper to inquire into all these areas. Appellant brings this appeal enumerating as error: (1) and (2) the direction of the verdict on behalf of the executrix and entry of judgment thereon; (3) the limitation of the trial de novo to the single issue of the returns filed by the executrix through 1969; (4) overruling appellant's motion to produce all records pertaining to the estate; (5) the denial of appellant's challenge to the court; and (6) the denial of appellant's motion for continuance. Held:
1. In accordance with the sole issue being litigated at the trial de novo before the Superior Court, appellant had the burden of establishing that the order of the Court of Ordinary of 1969 was erroneous in its conclusion that appellee had filed complete and accurate annual returns on the administration of the estate during the time she was the sole executrix up to the year 1969. The trial court stated that best evidence of the regularity of those returns was the documents themselves. Appellant demonstrated through the testimony of the appellee that she had produced all records available to her, that she had accounted for all assets received and disbursed and that she had made a full accounting of the estate. However, at no time did appellant offer credible or admissible evidence to refute the testimony of the executrix (appellee) or otherwise to show that the annual returns filed in accordance with the order of the Court of Ordinary were incorrect or incomplete. In fact, appellant did not introduce the returns themselves into evidence. There being absolutely no evidence to indicate the absence of proper annual accountings or that appellee had not filed a bond with good security, we cannot hold that the court erred in directing a verdict for the defendant (appellee) on the single issue that appellee had not obeyed the Ordinary's order of June 10, 1969, or that the Ordinary's order was not founded in fact or law. Further, there was no evidence, other than innuendo suggested by appellant and his counsel, that the information supporting the annual returns (which were in the record transmitted from the Court of Ordinary, but not introduced as evidence before the Superior Court) or the annual returns were incomplete or inaccurate. In this case, the evidence (or lack thereof) demanded the verdict. Lynch v. Etheridge, 72 Ga.App. 712, 713, 34 S.E.2d 670; Cason v. State, 16 Ga.App. 820, 825(4), 86 S.E. 644. There is no merit in enumerations one and two.
2. In the third enumeration of error, appellant complains he was not given a trial de novo on his appeal to the Superior Court. The factual reference for this enumeration indicates that on April 30, 1969, the Ordinary of Clayton County ordered the executrix (appellee herein)
Following that order, the Ordinary, on June 10, 1969, made the...
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