44 S.E.2d 896 | Ga. | 1947
The court of ordinary is given the exclusive original jurisdiction over the probate of wills by the Constitution and the statute. An appeal to the superior court, under the provisions of the Code, §§ 6-201, 6-202, must be from a decision of that court in the exercise of its exclusive jurisdiction *725 in the whole case made by the application to probate. A ruling by the court of ordinary, striking some but not all of the grounds of a caveat to an application to probate a will, was not a decision authorizing an appeal, and the superior court did not err in striking such appeal.
In the instant case, it is sought to remove the entire case from the court which had exclusive original jurisdiction to the superior court by an appeal from a preliminary ruling and before the inferior court rendered judgment in the main case, thereby accomplishing one of two equally undesirable results: (1) Usurping jurisdiction of the court of ordinary, in violation of the Constitution and the statute, by depriving that court of jurisdiction to decide the main question, which is, has the document offered been proved? Code, § 113-602. (2) Dissecting the case by placing portions of it in the jurisdiction of the superior court while other portions remain in the jurisdiction of the court of ordinary. The constitutional provision fixing jurisdiction constitutes an insuperable barrier to anything that would accomplish the former, and the necessity for intelligent and orderly adjudication is a barrier *727 to the latter. Counsel for the defendant in error in their briefs clearly demonstrate the intolerable condition that would result from allowing an appeal from each and every ruling by the court of ordinary preliminary to a final judgment. They correctly contend that, if such construction be given the statute, it would mean that the overruling of an objection to a question propounded to a witness would constitute a basis for an appeal and stop the trial in the court of ordinary; thereby either transferring the entire case to the superior court for an original trial of the main question as to whether the document offered was the will of the testator, thus usurping the constitutional jurisdiction of the court of ordinary, or delaying further procedure and trial in the court of ordinary until the appeal could be tried in the superior court. Furthermore, when a trial is resumed in the court of ordinary another similar preliminary ruling could be appealed from, and thus, by repeated appeals to review such preliminary rulings, the trial of the main case could be indefinitely postponed.
But counsel for the plaintiff in error make the argument here that, since the statute authorizes an appeal from any decision, and the ruling sustaining the demurrer to portions of the caveat is a decision, and since the law requires that the appeal be made within four days, the absence of an appeal within the time limit fixed by the law would allow such ruling to become final and it would become the law of the case, even when a subsequent appeal, after a final decision on the merits, to the superior court is made. This argument takes no account of the rule of law that requires a de novo investigation by the superior court on an appeal. Preliminary rulings by the court of ordinary are all subject, under the rule, to another ruling on the same questions when the case has been transferred by appeal to the superior court. This provision for a reconsideration on appeal takes from such preliminary rulings by the court of ordinary the quality of finality which they would otherwise have. If all parties are required to await a final decision in the main case, such a decision might be favorable to the party aggrieved at the preliminary ruling, thus removing any necessity for a review by appeal. In the present case, if the caveator awaits the final judgment of the court of ordinary, that judgment might sustain the caveat, thereby removing any cause for complaint about this preliminary ruling. It would be futile *728 for the superior court to review a preliminary ruling if the final judgment of the court of ordinary should be favorable to the party complaining of such ruling. It is very obvious that, where the statute refers to an appeal from any decision of the court of ordinary, it refers only to a decision of the entire case. Accordingly, the ruling of the court of ordinary sustaining the demurrer and striking three of the four grounds of the caveat, but leaving the fourth ground of the caveat, together with the application to probate, was not a decision of the case and was not a decision authorizing an appeal to the superior court. It was not error to strike the appeal on motion of the propounder.
Judgment affirmed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.