Touchton v. Stewart

Duckworth, Chief Justice. This is an appeal case to the superior court from a ruling of the court of ordinary sustaining a plea to the jurisdiction of a petition to probate a will after a hearing and dismissal of the petition. The propounder executed a bond, adding the word, “Executor,” behind his name as an individual, which he thereafter amended to add “as Executor of the Last Will and Testament” of the named deceased testator. The case came on for a hearing and the superior court dismissed the appeal without hearing evidence, and this judgment is assigned as error. Held: Without getting into the legal gymnastics of deciding whether or not, if the ruling of the ordinary is reversed, the superior court should either hear the entire case of probate or return it to the ordinary for a hearing on the question of probate (see Hartley v. Holwell, 202 Ga. 724 (44 SE2d 896)), the judgment appealed from dismissed the petition for probate without ruling on the merits finding only that the court was without jurisdiction. Thus the appeal was from the only ruling made in the lower court — which was final — and the superior court should have determined the issue of fact before it by hearing evidence in a de novo investigation as required by Code § 6-501. The bond is in order, with or without the amendment, and the lower court erred in dismissing the [456] appeal. We find no authority, and none is cited, which would hold that the principal and surety are not bound for the judgment on appeal. Code § 6-112. The applicant seeking to have the will probated is entitled to file the appeal and bond as done in this case. Argued July 12, 1966 Decided September 8, 1966. Sumner & Boatright, J. Laddie Boatright, H. B. Edwards, Jr., James 0. Goggins, for appellant. J. Lundie Smith, Noah J. Stone, for appellees. Judgment reversed. All the Justices concur.