Printup v. Smith, 19401
| Decision Date | 10 July 1956 |
| Docket Number | No. 19401,19401 |
| Citation | 93 S.E.2d 679,212 Ga. 501 |
| Court | Georgia Supreme Court |
| Parties | Dan PRINTUP et al. v. Ann Printup SMITH. |
Syllabus by the Court.
Where, as here, legatees and heirs, as caveators, prayed, first, that the will not be probated, then prayed further that, if it is probated, a named person be appointed as administrator with the will annexed, and the court of ordinary allowed probate but made the appointment requested, the caveators, having obtained the relief prayed for, were not authorized to complain, and, accordingly, it was not error to dismiss their appeal to the superior court.
Wm. P. Congdon, Congdon & Leonard, W. Inman Curry, Curry & Curry, J. Paul Stephens, Augusta, for plaintiffs in error.
Boller & Yow, Augusta, for defendant in error.
Although the caveators prayed, first, that the will be not probated, they offered as a second prayer that, if probated, their choice be appointed administrator with the will annexed, and that the request of the propounder, that she be so appointed, be denied. The court of ordinary denied the first prayer, but granted the second. The question for our decision is, if the caveators should be allowed to appeal from that judgment of the ordinary. Where one prayed for a construction of a will and the court construed it, this court held that, having obtained the relief prayed for, he could not except to that judgment. First National Bank of Rome v. Yancey, 207 Ga. 437, 62 S.E.2d 179. One assuming a position in court and having that position sustained by the court cannot thereafter assume a contrary position. Comer v. Epps, 149 Ga. 57, 99 S.E. 120. In the case last cited it is intimated that the rule might be different if the opposite party had not acted thereon to his prejudice. We think the serious business of the court would justify it in refusing to allow one to 'blow hot and then cold' thereby wasting its time. Courts have no power to control what litigants may ask them to do, but if a litigant is not sure of what he wants, he can refuse to ask for and receive a judgment of the court. Having voluntarily prayed for precisely the judgment granted him, it would be trifling with the law to allow him to secure a reversal of the judgment sought with full knowledge of all relevant facts.
It is true that in Gaither v. Gaither, 23 Ga. 521, it was held that a judgment probating a will in common form did not estop the executor from moving to set it aside and declare the...
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...in favor of one and against the other, the submitting party has received what he sought and is not entitled to appeal. Printup v. Smith, 212 Ga. 501, 93 S.E.2d 679 (1956); Bell Rose Sanitarium, Inc. v. Metz, Or., 425 P.2d 168 (1967); and see Annot. 69 A.L.R.2d 701, § 15 at 736 (1960). Howev......
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...the ground that plaintiff has received that which he requested. Bell Rose Sanitarium v. Metz, 246 Or. 475, 425 P.2d 168; Printup v. Smith, 212 Ga. 501, 93 S.E.2d 679; Coluzzi v. Reserve Ins. Co., 68 Mich.App. 524, 243 N.W.2d 906; Dow v. McVey, 174 Iowa 553, 156 N.W. 706; Fugate v. Walker, 2......
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