53 S.E.2d 244 | Ga. Ct. App. | 1949
1. Where one who has filed a caveat to an application for a year's support at the first term of the court voluntarily dismisses it, and moves at the second or third term thereafter to have the caveat reinstated, on the sole ground that it had been dismissed "inadvertently and through mistake," it is error to grant such motion over timely objection by the applicant; and the superior court on appeal did not err in so holding.
2. Objections to the allowance of a year's support must be filed at or before the term to which the citation is returnable, and a caveat filed at a later term was too late and should have been dismissed on timely motion by the applicant.
We think that the superior court properly reversed the ruling of the ordinary and correctly held that the original caveat was erroneously reinstated after it had been voluntarily dismissed by the caveator. The record shows that the dismissal of the caveat was in these words: "The within caveat is withdrawn and dismissed by caveator, Fred E. Bowman, without prejudice. This 10th day Sept., 1948. Jas. L. Moore, Atty. for Fred E. Bowman." Counsel say in their brief that this dismissal was entered on the original caveat. In Simpson v. Brock,
It is argued by counsel for the plaintiff in error that, since no order dismissing the caveat was taken, the case was still pending before the court. But the facts are that the caveator withdrew and dismissed the first caveat, and treated and regarded it as having been withdrawn and dismissed by filing another caveat, and the words, "withdrawn and dismissed," appear above or to the side of the signature of the ordinary on the order allowing the amendment. It is further contended that the court had the authority to reinstate the case notwithstanding its dismissal, and counsel cite and rely upon Warner v. Graves,
2. Upon the filing of the appraisers' return the ordinary shall issue citation and publish notice for four weeks citing all persons concerned to show cause why the application should not be granted, "and if no objection is made after the publication of said notice for four weeks, . . the ordinary shall record the return so made in a book to be kept for this purpose." Code, § 113-1005. This Code section "has several times been construed by this court with respect to the time within which objections must be filed, and it has been held that they must be filed at or before the term to which the citation is returnable. Parks v.Johnson,
Judgment affirmed. Sutton, C. J., and Felton, J., concur. *244