Montgomery v. Paradise

Felton, J. Where a caveat has been filed in the court of ordinary to the return of appraisers setting apart a year’s support, and before the trial of the issue made by the filing of the caveat a suit is pending in which the applicant stands in the relationship of the plaintiff, she may dismiss the suit at any time before the trial. A dismissal or withdrawal by the applicant of the application for year’s support, and an order by the ordinary dismissing such application, do not, either on the principle of res judicata or otherwise, preclude or estop the applicant from making, at a subsequent term of the court of ordinary, a second application for a year’s support, and obtaining a judgment setting apart a year’s support upon such application. Hill v. Hill, 58 Ga. App. 179 (198 S. E. 279). The judge of the superior court did not err in sustaining her appeal and in remanding the case to the court of ordinary. Judgment affirmed. Stephens, P. J., a/nd Sutton, J., concur.