Smith v. Smith

• Decision Date: 21 May 1897
• Citation: 28 S.E. 665,101 Ga. 296
• Parties: SMITH et al. v. SMITH.
• Court: Georgia Supreme Court

28 S.E. 665

101 Ga. 296

SMITH et al. v. SMITH.

Supreme Court of Georgia

May 21, 1897

Syllabus by the Court.

1. A judgment of the ordinary, approving a return made by appraisers setting apart specified realty as a year's support, did not, as against third persons claiming title to the property, but who had not filed with the ordinary any objections to the allowance of such return, adjudicate that the title was in the estate of the applicant's deceased husband.

2. The mere fact that such third persons entered an appeal to the superior court from the ordinary's judgment, and afterwards voluntarily dismissed the appeal, did not render that judgment binding upon them. The appeal, under such circumstances,--the appellants never having been parties below,--was a mere nullity, and the dismissal of it in the superior court in no way affected the question of title.

3. Where, pending such appeal, a receiver was, upon an equitable petition filed by the widow against the appellants, appointed to take possession of the property, it was error, after and because of the dismissal of the appeal, to render in the equity case, at its trial term, a final decree in effect adjudging that the title to the property was in the estate of the intestate, and peremptorily directing the receiver to put the widow in possession and pay her the accrued rents, less the costs of the pending proceeding; the defendants having filed an answer setting up title in themselves, and being by such decree deprived of any hearing as to their alleged rights in the premises.

4. While it would have been the right of the plaintiff to dismiss the equitable petition, she was certainly not entitled to any such decree as that above indicated.

Error from superior court, Muscogee county; W. B. Butt, Judge.

Petition by Sophronia Smith for the appointment of a receiver. From a decree that the receiver turn over to the petitioner certain property, and that the petition abate and be dismissed Squire Smith and others excepted and bring error. Reversed.

Blandford & Grimes, for plaintiffs in error.

Brannon Hatcher & Martin, for defendant in error.

COBB J.

Sophronia Smith, as the widow of William Smith, applied to the ordinary for a year's support, which was set apart to her in a city lot. No objection was filed by any one to the return of the appraisers, and it was recorded as required by law. After this three other Smiths, alleging themselves to be the children and heirs at law of William Smith, and who were in possession of the lot, entered what purported to be an appeal to the superior court. Sophronia Smith then brought her petition, praying for the appointment of a receiver to take charge of the property, alleging that there was no administration on the estate of William Smith, and no necessity for any; that upon his death the three other Smiths, being over 30 years of age, and being children of the decedent by a former marriage, took possession of the property, and refused to permit plaintiff to enter thereon that they were insolvent; and that their only reason for entering an appeal from the judgment of the ordinary was to delay plaintiff in obtaining possession and enjoyment of her year's support. In their answer the defendants alleged that they were in...