Obear v. Gray

• Decision Date: 30 September 1884
• Citation: 73 Ga. 455
• Parties: Obear, executor, etc. vs. Gray.
• Court: Georgia Supreme Court

73 Ga. 455

Obear, executor, etc. vs. Gray.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Res adjudicata. Practice in Supreme Court. Evidence. Insanity. Before Judge Carswell. Bibb Superior Court. October Term, 1883.

Gray filed his bill against Obear, as executor of William Gray, deceased, and as trustee for complainant. He alleged that the trust was created during his minority by the will of his father, William Gray, but that he had since become of age and capable of managing property, and that the trust had become executed. He charged also various acts of mismanagement of the executor, and sought to have him discharged and to have the property turned over to himself.

Defendant denied any mismanagement on his part, and alleged that the reason for creating the trust was that complainant was non compos mentis, and not capable of managing property, and that this was still the case.

This last question alone seems to have been submitted to the jury. They found that, at the date of the creation of the trust, complainant was incompetent to hold andmanage property, but that he was competent to do so at the time of the trial. Defendant moved for a new trial, which was refused, and he excepted.

This case has been to the Supreme Court several times, and will be found reported in 54 Ga., 231; 55 Id., 138; 59 Id., 675; 68 Id., 182.

For the other facts, see the decision.

Lanier & Anderson; Gustin & Hall, for plaintiff in error.

J. Rutherford; J. C. Rutherford; Sam. H. Jemison; L. N. Whittle, for defendant.

Blandford, Justice.

1. The defendant in error moved to dismiss the writ of error in this case, because the order passed in term allowed the plaintiff in error until a certain time in vacation to prepare the motion for new trial and brief of evidence had upon the trial of the case, and an order was passed at a subsequent day in the term at which the trial was had, giving a further day within which to prepare the motion and brief of the evidence. The judge who presided at the trial of the case in vacation granted the rule nisi, requiring defendant in error to show cause at the next term of the superior court of Bibb county why a new trial should not be had in said case. These orders were all granted without the consent of defendant in error or his counsel. The plaintiff in the case appeared at the time and place appointed for the hearing of the motion, and objected to the case being heard, because the court had no jurisdiction for that purpose. The court overruled this objection, heard the motion, and refused the same. The defendant in error took no bill of exceptions to the ruling of the court overruling his objections to the motion being heard for want of jurisdiction. He is thereby concluded bythe decision of the court, which is res adjudicata. He cannot escape from the conclusiveness of that judgment by his motion to dismiss this writ of error. We are of the opinion that movant can take nothing by his motion, and the same is overruled.

The defendant excepted to the judgment of the...