161 Ga. 232 | Ga. | 1925
Lead Opinion
The administrator of Beeves filed a petition based upon Civil Code (1910), § 4597, praying for direction of the court in the distribution of the estate. The court rendered a judgment finding that some of the contestants were entitled to inherit' as heirs of the intestate, and against the contentions of other contestants, among whom was the plaintiff in error. The judgment was one properly falling within the provisions of the aforementioned code section, and did not include the final settlement of the administrator, nor judgment in favor of any of the contestants for stated sums, but left the distribution for further action of the court. The defendants in error in this court moved to dismiss the writ of error; on the ground that no final judgment had been rendered in the case which could be brought to this court for review by direct bill of exceptions.
The motion to dismiss the writ of error is denied. A decree may be partly final and partly interlocutory; final as to its determination of all issues of law and fact, and interlocutory as to its mode of execution. A final decree disposing of all of the substantial equities of the case, such as the conflicting claims to an estate, is not made interlocutory by the mere fact that final settlement with the rightful heirs has not been decreed. Moody v. Muscogee Mfg. Co., 134 Ga. 721 (68 S. E. 604, 20 Ann. Cas. 301); Capital City Tobacco Co. v. Anderson, 138 Ga. 667 (75 S. E. 1040); Massachusetts Bonding & Insurance Co. v. Realty Trust Co., 139 Ga. 180 (77 S. E. 86).
The court erred in repelling this testimony. The proceeding was not a suit instituted or defended by the personal representative of the deceased person, in the sense in which the word “suit” is used in the Civil Code, § 5858, par. 1. The administrator in this proceeding wras not undertaking to recover a judgment for any debt or obligation due the estate, and the administrator was not interested in the result of the proceedings; his only interest being that of a mere stakeholder, and his position being analogous to that of a third party entitled to maintain an equitable petition for inter-pleader. Bland v. Beasley, 138 Ga. 712 (76 S. E. 50); Jasper County Bank v. Rainey, 144 Ga. 542 (2) (87 S. E. 661); Neal v. Neal, 153 Ga. 44 (2) (111 S. E. 387). Such evidence was not inadmissible for any reason assigned by counsel for defendant in error, nor for any other reason of which we are aware. Moreover, if the suit could be construed as one instituted or defended by the personal representative of the deceased, such personal representative did not object to the evidence being admitted.
The court also directed a verdict in favor of the claims of other contestants, after . having directed a verdict against the claims of Mary Cooper. The error in excluding the testimony mentioned in the next preceding division was controlling in the case, and rendered all subsequent actions erroneous, since the rights of Mary Cooper necessarily entered into and affected the rulings in favor of other contestants. It is therefore ordered that the judgment overruling the motion for a new trial be reversed, and the case be remanded to the trial court for further action consistent with the foregoing rulings.
Judgment reversed.
Rehearing
ON MOTION EOR REHEARING.
On motion for rehearing, and after careful consideration of all of the grounds in said motion and the authorities cited, we adhere to the judgment previously rendered. In view of the motion, however, we have withdrawn the second division of the opinion as it originally appeared, in order to fully state the details of the assignment of error and the recitals in regard thereto contained in the bill of exceptions. The evidence objected to and forming the basis of the ruling in the second division was set out as a whole in the bill of exceptions, as well as the ruling thereon, and