21 S.E.2d 134 | Ga. Ct. App. | 1942
1. In accordance with the ruling of the Supreme Court in Tilley
v. King,
2. The trial court certified in the bill of exceptions that after argument on the general demurrer, "judgment of the court thereon being confined solely to the question of whether the petition set forth a cause of action, judgment was entered up overruling said general demurrer to the petition." It is the opinion of this court that when we vacate our former judgment and sustain the judgment of the lower court overruling the general demurrer we have passed on every question properly presented in this record for our decision. Gabbett v. Atlanta,
The defendant filed the following demurrer: "Now comes the defendant, J. E. King, executor of the estate of Lewis L. Tilley, at this the appearance term, and before filing his answer therein, files these his general demurrers thereto, and for grounds *507 thereof, says: (1) Defendant demurs to said petition upon the ground that the allegations therein show no cause of action against this defendant and there is no cause of action set out in said petition. (2) Defendant demurs to said petition upon the ground that said petition sets forth no cause of action, and no facts are set forth sufficient to authorize the recovery by plaintiff of $1500 or any other amount for rent for the year 1939, on lands, which as shown by said petition, were set apart to plaintiff as a year's support by a verdict and decree rendered on December 5th, 1939, after all crops from said lands for said year had matured, had been gathered, and sold. Wherefore, defendant prays that these his grounds of demurrer be inquired of by the court, and that said petition be dismissed." (Italics ours.)
The judge certified in the bill of exceptions as follows: "Be it further remembered, that the defendant, J. E. King, as executor of the estate of Lewis L. Tilley, deceased, filed certain general demurrers to the petition of the plaintiff Mrs. Margaret Wright Tilley, for herself and two minor children, Lewis L. Tilley, III, and Wright Tilley. Be it further remembered, that said cause having come on regularly for a hearing at the regular December term, 1940, thereof, of said court, on the 5th day of December, 1940, before his honor, C. W. Worrill, judge of the superior court of said county; that after argument was had upon the issues raised in said petition of Mrs. Margaret Wright Tilley, for herself and two minor children, Lewis L. Tilley, III, and Wright Tilley, and the general demurrer thereto by the defendant J. E. King, as executor of the estate of Lewis L. Tilley, deceased, the argument and judgment of the court thereonbeing confined solely to the question of whether the petition set forth a cause of action, judgment was entered up overruling said general demurrer to the petition of Mrs. Margaret Wright Tilley, for herself and two minor children, Lewis L. Tilley, III, and Wright Tilley, which judgment so entered was as follows: `The within demurrer coming on for hearing, during the regular December term, 1940, of the superior court of Terrell County, Georgia, and after argument it is ordered that said demurrer be and the same is overruled. This December 5th, 1940. C. W. Worrill, J. S.C. P. C.'" (Italics ours.)
The plaintiff in error in the demurrer itself, the defendant in error in his brief, and the judge of the lower court treated this case as if the sole question properly raised for decision by the record was whether or not a general demurrer should have been sustained, and this court in King v. Tilley, supra, so treated the case and held: "The widow is not entitled to collect any of the rents for the year 1939. Hence the judge erred in not sustaining the general demurrer." We understood that the general demurrer passed on by the trial court raised the question whether, admitting all the allegations in the petition to be true, the plaintiff is entitled to recover any of the rents actually sought; however, the amount thereof may be measured.City Council of Augusta v. Lamar,
On certiorari the Supreme Court, two Justices dissenting, reversed the judgment of this court, ruling as follows: "1. Where a year's support for a widow and minor children was duly set apart by appraisers, and the return was approved and recorded by the ordinary, and after an appeal to the superior court upon objections filed to the return of the appraisers a consent verdict and judgment were rendered, allowing as a year's support one of the tracts of land, which had been previously set apart in the ordinary's court, the original judgment in that court as to this tract will not be treated as having been vacated by the appeal; but the title of the widow, with whatever rents, issues, and profits, if any, incident thereto, accrued to and vested in her subject to be divested by the judgment on appeal, from the date of the original judgment in the court of ordinary. 2. The Court of Appeals not having passed *509 upon the question as to what rents, issues, or profits, if any, the widow and minor children would, under the rule stated in the preceding headnote, be entitled to, or whether that question was properly presented by the record, no adjudication on these questions is made." Tilley v. King, supra. In accordance with that ruling of the Supreme Court the decision rendered by this court (King v. Tilley, supra), is withdrawn and vacated.
In our opinion the only question properly presented by the record is whether a general demurrer should have been sustained.Linder v. Whitehead,
The trial court having overruled the general demurrer, and the Supreme Court having likewise decided that the general demurrer should have been overruled, the judgment of the trial court is sustained by this court. We think this court has now, in sustaining the judgment of the trial court overruling the general demurrer to the petition, decided every question properly presented in this record for our decision. Martin v. McAfee, supra.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.
