160 Ga. 469 | Ga. | 1925
Jonathan P. Dyar Sr. died in July, 1923, leaving a will. He also left a widow and seven children. The executor named in the will, Forrest L. Dyar, filed with the ordinary a petition to probate the will in solemn form. The ordinary issued the usual citation addressed to all the heirs at law of J. P. Dyar Sr., including the widow, Mrs. Margaret Frances Dyar. A copy of the petition to probate and of the citation was served upon Mrs. M. F. Dyar and the children, in person, by the sheriff of Bartow County, who made legal return of such service. At the hearing before the ordinary the four daughters of the testator filed a caveat to the probate. The widow did not join in the caveat. After hearing evidence on the issue made by the petition and the caveat, the ordinary refused to probate the will. An appeal was taken from the judgment of the court of ordinary to the superior court of Bartow County by Forrest L. Dyar, Clifford H. Dyar, and J. P. Dyar Jr. The case was tried before a jury, and a verdict was rendered on April 5, 1924, sustaining the caveat. On May 5, 1924, Mrs. M. F. Dyar filed her motion to set aside the verdict, on the ground, among others, that the case was submitted to the jury by the court’s charge after dark on the night of April 4, 1924, and the jury retired for the consideration of the case; “that about 10 o’clock on the night of April 4, 1924, Hon. M. C. Tarver, judge of said court presiding, and who presided over said court until said time, made, or had made, an inquiry as to the probability
On the call of the case for argument in this court a motion was made by the defendants in error to dismiss the bill of excep
On April 25, 1924, the jury on appeal in the superior court rendered a verdict in favor of the caveators. On May 5, 1924, during the same term of court, Mrs. M. F. Dyar filed her motion to set aside the verdict, on the ground that before the jury had agreed upon a verdict and returned it into court the presiding judge, Hon. M. C. Tarver, had vacated the bench, and that the judge of the city court of Cartersville, Hon. W. T. Townsend, presided instead and in' the place of Judge Tarver during the deliberations of the jury and received the verdict when it was finally rendered, instead of and in the place of Judge Tarver. On the other hand the record discloses that the caveators on the one side, and the
Judgment affirmed.