132 Ga. 822 | Ga. | 1909
An instrument in writing purporting to be the will of Mrs. Exley was offered for probate in the court of ordinary of Chatham County. Twenty-four of the thirty-five heirs of Mrs. Exley, upon whom citations were served, filed a joint caveat to, the proceedings. The ordinary rendered a decision admitting such, instrument to probate in solemn form as the will of Mrs. Exley. On December 4, 1907, six different papers were lodged with the ordinary, purporting to be the separate appeals of certain caveators, namely: (1) Mary Metzger, the plaintiff in error in' the present ease, (2) Josie Dawson Wilson, (3) Z. G. Morgan, (4) Marion Morgan and another, (5) Ada Morgan and eight others, (6) Carrie Gnann. All of the six papers above referred to were affidavits in forma pauperis and in the usual form, and were executed and delivered to the ordinary for the purpose of appealing the case to the superior court. The affidavit of Mary Metzger and that of Carrie Gnann are endorsed by the clerk of the.court of ordinary as “filed Dec. 4, 1907.” The remaining four affidavits bear no endorsements. The six affidavits were fastened together, and the first and the last are the ones marked filed. The defendant in error, who was the propounder of the will, made separate motions in the superior court to dismiss each of said appeals, on the following grounds: (1) Because said appeal has not been entered according to law. (2) Because said appeal does not comply with the law of Georgia in such case made and provided. (3) Because said appeal is contrary to the law in such case made and provided. (4) Because the affidavit in forma pauperis, which is. the foundation of said appeal, fails to allege in substance that the other caveators of record who did not appeal from the decision of' the court of ordinary were unable owing to their poverty to pay the: costs or give the security required by law in said case. (5) Because: said affidavit in forma pauperis fails to allege in substance that all) of the caveators who have appealed from said decision are, collect^ ively, unable owing to their poverty to pay the costs or give the security required by law in said case. (6) Because the' appeal'as made does not join as parties the other joint caveators. The court
As far as disclosed by the record, each of the appeal affidavits was filed with the ordinary at the same moment of time, and each alleged the inability of the maker or makers of the respective affidavits to pay the costs or give the bond required by law, without referring to the inability of all of the caveators, or of those filing appeal affidavits, to pay the costs or give bond. In the concluding part of the opinion of the able and learned judge who rendered the judgments, it is stated: “I conclude that the appeal should have been joint in all respects, and not having been joint, and there being no authority for consolidation under the circumstances, an order will be prepared dismissing the appeals at bar.” Under the judiciary act of 1799, either party dissatisfied with a verdict of a jury might enter an appeal within four days after the adjournment of the court. This act applied only to appeals in the superior and inferior courts, and did not provide for an appeal from any decision of the court of ordinary. By the act of December 7, 1805, the right of appeal from the decisions of the court of ordinary was given; and by the act of December 19, 1823, the right of trial by jury on appeal from the judgment of the ordinary was provided. The title of the act of December 23, 1839 (Acts 1839, p. 142), was “An act to explain and amend the judiciary act of 1799, so far as concerns the granting of appeals in certain cases,” and the preamble of this act is as follows: “Whereas a a contrariety of opinion exists among the judges of this State, and a different practice prevails in the different judicial circuits thereof, touching the granting of appeals under certain circumstances; for remedy whereof, be it enacted,” &c. The provisions (of this act are .substantially the same as those now embraced in the Civil Code, §§4461, 4462, 4463. One of the main objects of . the act of 1839 was to make clear the right of one or more parties to a case to appeal when their coparties refused or failed to do so, and to render it unnecessary for all of the losing parties to join in the appeal. Such right was made plain, as shown by those provisions of the act which now appear in Civil Code, §4461, as follows: “When there shall be more than one party plaintiff or defendant, and one or more of said parties plaintiff or defendant , desires to appeal, and the others refuse or fail to appeal, such
It is urged by the defendant in error, and was held by the court below, that those desiring to appeal should have joined in one affidavit in forma pauperis, and that they could not simultaneously file separate affidavits. We can not agree to this contention. The main purpose of the act of 1839 was to confer on each of the
This case can not be analogized to one where a member of a partnership makes an affidavit to obtain a certiorari, and is required, as held in the case of Marlow v. Hughes Lumber Co., 92 Ga. 554 (17 S. E. 922), to swear that the firm is unable to pay the cost and give the bond required. There the party making the: affidavit for the partnership was a member thereof, but it was the-firm itself certioraring the case. It was ruled in Livingston v. King, 2 Ga. App. 178 (58 S. E. 395), that a partnership making an appeal through one of its members can not maintain it by an. affidavit in forma pauperis, unless the member entering the appeal swears that the partnership is unable to pay the costs or give the-security. This presents a situation entirely different from one-where all of the parties defendant to the suit have no interests in-common except that they belong to a class which will' share alike-in the results of the litigation, not as members of a firm which constitutes the sole defendant, but as individuals with independent: interests. In the present case there is not one defendant only, but: as many defendants as there are.caveators. In a case which arose-, before the adoption of the code, and under a statute which did. not include other trustees with executors and administrators in dispensing with the ordinary requisites in entering appeals. (Scott v. Turpin, 30 Ga. 964), it was held that a trustee appealing a. case in his representative capacity can not make such an appeal, by simply swearing that he individually is unable to pay the costs, or give the security; and this decision is. cited by counsel for defendant in error in support of the position that one of the parties, appealing the case should swear that all of the others- are rinableto pay the costs or give the security. It was also held in Barfield v. Hartley, 108 Ga. 435 (33 S. E. 1010) A that “An affidavit filed.
It is urged, as a reason why an appeal should not be entered as in the ease at bar, that the six separate and distinct affidavits of those desiring to appeal would entail six trials in the court to which the case was appealed, and that there is no rule of law permitting the consolidation of the cases by the court of its own motion. The question of the right of the court to consolidate six appeal cases and have only one trial does not enter into the consideration of any of the questions before us. There is and can be but one appeal, and there should be, in the court to which the case is appealed, but one case docketed. The case would remain in court as long as one of the affidavits in forma pauperis, filed in proper form by the proper party and within the time prescribed, was not dismissed or withdrawn. If all of the affidavits in forma pauperis were dismissed by the court except one, the ease would be in court and all of the other parties would be parties thereto, though they did not have in court any affidavits in forma pauperis, or bonds appealing the case. This is true for the reason that an appeal by one party to a controversy of this kind carries up the whole case and record- and all of the coparties, who have the same interests and rights in the case on appeal as the party making the affidavit which had the effect of appealing the case. Murray v. Marshall, 106 Ga. 522 (32 S. E. 634). The party making the affidavit appealing the case could not of his own motion, after the case was thus appealed, dismiss it and thereby prejudice the rights of the other parties thereto, whose rights in the case on appeal, after the appeal is entered, are equal to those of the party making the appeal. The six affidavits, filed simultaneously with the ordi