Driver v. Sheffield

Almand, Justice. To the application of Mrs. Bonzie Sheffield to propound the will of W. J. Sheffield in the Court of Ordinary of Carroll County, Effie Driver and others filed a caveat. On the hearing, the ordinary found against the caveators and admitted the will to probate. Thereupon the caveators filed an appeal to the superior court. When the case came on for a hearing in that court, the demurrer of the propounder was sustained and the caveat dismissed. Neither the bill of exceptions nor the record shows that any other proceedings were had in the case on appeal. The sole assignment of error in the bill of exceptions brought by the caveators is that the court erred in sustaining the demurrer to the caveat and in dismissing the latter. Held: 1. The motion of the defendant in error to dismiss the bill of exceptions because it appears that the same was not certified within 20 days from the date of the order complained of, on the ground that the act of December 21, 1953 (Ga. L. 1953, Nov.-Dee. Sess., pp. 279-280) was ineffective as repealing Rule 6 of this court (Ga. L. 1946, pp. 726, 734-35), is denied, this motion being controlled by the ruling in Gordy v. Dunwody, ante. 2. The bill of exceptions containing no assignment of error upon any judgment awarding or refusing probate of the will, or dismissing the appeal, but only on the order striking the caveat on general demurrer, and such judgment not being a final termination of the case, this court is [818] without jurisdiction, to entertain the writ of error. Whiddon v. Hill, 180 Ga. 430 (179 S. E. 104); Shropshire v. Broome, 207 Ga. 313 (2) (61 S. E. 2d 284). Argued June 15, 1954 Decided July 13, 1954. Lamar Knight, Robert D. Tisinger, for plaintiff in error. Shirley C. Boykin, Boykin & Boykin, James F. McNamara, contra. Writ of error dismissed. All the Justices concur, except Wyatt, P. J., who dissents from headnote one, and therefore from the judgment of dismissal.