*1 24849. JORDAN v. al. RIDGDILL et appeal in this case is from an order Frankum, denying a for summary judgment motion a in a appealed superior judgment court from a by rendered Ordinary County. Chatham The case before ordi- nary was a statutory proceeding to remove an obstruction from private way a brought provisions under the of Code appeal At the time the 83-119. from the superior pending transmitted to court there was court an damages injunctive action for relief filed plaintiff against the from appeal same defendants. After the the ordinary was a superior docketed in the court motion to consolidate the far made, but, appears two cases was so from the no order of record, consolidation ever made. appeal summary judgment The from denying the order proper certificate of appealability judge Appeals, was directed to inter- the Court mingled records in both cases transmitted to Appeals. appeal court, That court transferred the apparently being opinion the case involved question equity. But, examination of the entire careful appeal solely record so is from transmitted shows from judgment denying appeal question and that no ordinary, rendered respecting the other propriety order or presents no appeal, therefore, case is and the case jurisdiction, for decision which this court has accordingly Appeals. Returned the Court All the concur. Justices September Submitted 1968 Decided October Joseph B. Bergen, appellees.
John R. Calhoun,
24791. ARGO v. GEISE. Argued September 10, 1968 Decided October *2 Morris, N. Claude appellee. Hargrove, Henry Crisp,
Smith, Crisp &
consider whether
necessary only to
It
Justice.
acknowledged by the testatrix. While the
signature
affidavits of each
witness
record contains
writing
and did
signature
affix her
did
own
testatrix
not
body
writing
of
appearing in the
acknowledge her name
not
her
three
witnesses
at the time it was
three witnesses sub-
other,
of each
one
and in the
she
informed us
affidavit in which
swore: “She
mitted a further
piece
handed us a
us to
her will. She
that she
wanted
a manner that we could
no
folded in such
paper
that was
Smith,
T.
writing
Smith,
Frances
I
on
Lucille
it
S.
paper
papers
piece
or
on it.
our names
This
County, by
Ordinary, Sumter
John
filed in the
that was
Betty
and testament of the said
Argo as the last will
Thomas
filing
February
bearing the
date
papers now
C. McKee. Said
Ordinary.
exam-
Eugene Horne,
I
signature
8, 1968, over
hearing
in the court of
recently at a
said papers
ined
papers
offered as
said
were
Eugene
said
Horne when
Betty McKee.
I exam-
testament of
C.
When
the last will and
hearing
recognized my signature
papers
ined said
at said
and I saw
papers were unfolded
thereon and at that time said
hearing
“Betty
I saw
At said
writing
thereon.
there was
unfolded and
papers
handprinted on said
McKee”
did not -intend
Betty C. McKee
saying
am
that the said
papers
or
paper
on the
it was
this to be her
the instance
signed at
Smith,
T.
and I
Smith,
Lucille
Frances
S.
it.
is all know about
Betty
McKee
C.
memory
mind and
disposing
Betty McKee
of sound
C.
names to said
our
three of us aforesaid
writing
signa-
or
nowas
paper
papers.
or
there
I will
state
afore-
of us
asked the three
paper Betty
ture on
McKee
C.
because of
none visible
as her
but there was
said to witness
manner in
folded.”
attesting
sign
must either
“The testator
each of them whose
acknowledge
his
or
sign.
presence he did not
885).”
(1)
Davis,
Thornton v. actually no under the facts of the case where did not the testatrix and where saw the testatrix err in the trial court did not her thereon *3 judgment. summary of the caveatrix for granting the motion except J., concur, Nichols, Judgment All the Justices affirmed. who dissents. pre- decision was dissenting. The above Justice, majority of opinion of the
pared in accordance with grant affirming the but must dissent from the court summary judgment. required to amended in lower 113-301, Code while 1958 basically two, has remained number of from three to (Ga. 1851-52, adopted in since it was first same 1851 personalty of application to p. and even then was a mere 104), relating realty. the law language upon such are decisions of the court based v. inconsistency. The decision in Thornton 218
without majority, states 744), upon relied Ga. 480 or for necessary it is for the witnesses testator signature. This is full bench the testator to is in conflict with older full shown it decision but will be bench decisions. (1) (76 675), cited in the
In v. Ga. 808 30 698 holding
Thornton case, acknowledgment an signature by the testator sufficient, acknowledgment seeing whether an of the will the tes- without tator’s would be sufficient was v. Davis, 885), also cited 690 SE the Thornton case, need not be of the fact that discussed view two Justices dissented. 645), a full bench Slade, 851, v. Ga. 859 SE
In Slade 155 456, held: “In the of Beall v. Ga. decision, it was 5 11, Gryle Gryle, v. Jr. 469, said, the court ‘In the case of 1 Ves. execution, Lord doubted whether it was sufficient Hardwick say before the publication for the testator part. on his my will,” “this is without some further act adjudi long vanished, have since and modern But those doubts deciding duly gone cations to the that a will is have extent though published, the witnesses neither saw executed acquainted instru testator’s nor were made they provided requested by the testa attested, tor the memorandum of attestation. Museum to subscribe British Bingh. Wright v. 689, P. s. c. White, M. & 6 3 Johnson, c. Wright, 316, Bingh. P. s. 7 457. Johnson & 5 ” de Cromp. page And on Mees. 140.’ 860 v. Trustees cision it was said: “In the more recent case White Bing. Museum, 310, of British M. and P. very upon point bar, as to its facts to the case similar sufficiently held that a subscribed will was attested when presence of the testator and at his re three witnesses in the quest, though none of the witnesses saw the testator’s them the instrument only one of knew what was.” McBride, In Brown v. another *4 jury of this court held full bench decision wherein the was propounders to find for the evi- authorized the the will where surrounding obtaining circumstances dence as to the the “Clegg signatures was forth as follows: was the witnesses’ set McDonald, Rhodes, Kerney testator. and A. J. A. A. G. testimony by any There was no were the witnesses. actually signed presence that the testator will testimony but there the effect signed presence that all in the three witnesses point, Upon testator and in of each other. will; Kerney by interrogatories: testified ‘I was witness to original Judge as a D. will Pope. George H. other McDonald and John were the Rhodes witnesses. do not the other two witnesses were know whether present my Clegg when best present Clegg signed recollection is that was not when the will. the will in the two witnesses testator, in the other.’ witnesses and each proved on Neither McDonald nor testified. It was Rhodes that McDonald dead. It was shown that the genuine signature to the will There the testator. that, years was also evidence to the effect some fifteen trial, country had left the and had been heard of Rhodes since.” beginning the full bench decisions with Beall v.
Under supra, decided in criticized in hundred never the one twenty years although at times since, overlooked, the judg- granting deny- caveator’s and thus propounders opportunity jury have a ing the decide the issue should be reversed. JENKINS, By Guardian v. GENERAL MOTORS
CORPORATION. original petition case was January history For a of the case see General Corp. Jenkins, App. Motors 114 Ga. SE2d petition for cer- App. SE2d granted again tiorari was to review the effect sustaining general petition to a and at the same demurrer permitting plaintiff days a number of in which amend. Vann, Manor v.
In Northside general demurrer to a a trial court sustains a held that where may amend, if plaintiff petition but allows time in which the ap- timely period and no no amendment is filed within