109 Ga. 616 | Ga. | 1900
Anna O. Cunningham presented to the ordinary of Fulton county her petition to have set apart to her as a homestead certain lands belonging to petitioner. At the hearing of this application the defendants in error, her creditors, demurred to the petition. This demurrer the ordinary sustained, and from the judgment dismissing her application petitioner appealed to the superior court. When the case was called for a hearing in the superior court, counsel for defendants in error moved that the case be dismissed, on the ground that an appeal would not lie from the judgment of the ordinary dismissing an application for a homestead upon demurrer, but that the remedy is by certiorari, and not by appeal. • The court sustained the motion to dismiss the case, to which judgment plaintiff in error excepts.
We think that not only the statute, but also the adjudications of this court, have recognized the distinction between the court of oi’dinary and the ordinary. The present constitution of the State declares that “The judicial powers of this State shall be vested in a Supreme Court, superior courts, courts of ordinary, justices of the peace, commissioned notaries public, and such other courts as have been or may be established by law.” Civil Code, § 5831. It further declares that “The powers of a court of ordinary, and of probate, shall be vested ian ordinary for each county, from whose decision there may be an appeal (or, by consent of parties, without a decision) to the superior court, under regulations prescribed by law.” Civil Code, § 5852. Under section 4251 of the Civil Code, it is provided, “The courts of ordinary shall be held in each county, by the ordinary thereof, on the first Monday in each month.” In the jurisdiction conferred upon courts of ordinary in section 4232 of the Civil Code, we nowhere find that they are given jurisdiction over homesteads. The constitution of the State, art. 9, sec. 4, par. 1, provides that the General Assembly shall provide by law, as early as practicable, for the setting apart and valuation of property for homestead. So far as the constitution, therefore, is concerned, the General Assembly was unrestricted as to the manner in which it could by statute provide for the setting apart of a homestead. It could have conferred
We know of no provision in the law anywhere that gives the right of appeal from a decision of the ordinary when not rendered as judge of the court of ordinary, except the appeal provided for in section 2838 of the Civil Code. It will be seen, however, that the provisions of that section with reference to an appeal from the judgment of the ordinary have no application whatever to the case we are now considering. By the preceding section of the Civil Code (2836) the right is given to any creditor of the applicant for homestead to malcfe objections to the schedule, for want of sufficiency and fulness, or for fraud of any kind, or to dispute the valuation of personalty, or the propriety of the survey, or the value of the prejnises so platted as the homestead. Section 2838 provides that upon such objections being filed in writing, unless the applicant shall so alter the schedule or plat, or both, as to remove said objections, the ordinary shall appoint three disinterested appraisers to examine the property concerning which the objections are made, and on their return, if either be found to- be too large, such alterations shall be made as the ordinary may deem proper to bring the same within the limits of the value allowed by the constitution. Now, that section simply provides that either party dissatisfied with such a judgment as this, rendered
But the case at bar is really a stronger one in support of the position that the appeal from the judgment of the ordinary complained of was not the legal remedy for reviewing his decision, than was the case of Harrell v. Pickett, just cited; for the constitutions, both of 1868 and of 1877, provide that “The courts of ordinary shall have such powers in relation to roads, bridges,ferries, public buildings, paupers, county officers, county funds, county taxes, and other county matters, as may be conferred on them by law.” Under this provision in the constitution, therefore, the question might arise with some force as to whether or not the business of the inferior courts was turned over to the ordinary, or court of ordinary. There is no question in the case now under consideration as to whether the jurisdiction wdth reference to setting apart homesteads under the present constitution and statutes of the State was conferred upon the ordinary, or court of ordinary. It was clearly conferred upon the ordinary himself, who has power to pass upon the same at any time without regard to any term of the court of ordinary. Our attention has been called to several cases which have been before this court where appeals were taken from similar decisions of the ordinary in homestead matters; for instance, the case of Marsh v. Lazenby, 41 Ga. 153. It appears from the facts recited in that case that it was tried in the superior court on an appeal from the judgment of the ordinary dismissing the petition of the applicant for homestead. See also Kirtland
Judgment affirmed.