Morris v. Morris

123 Ga. App. 116 | Ga. Ct. App. | 1970

Quillian, Judge.

This is an appeal from an order sustaining the judgment of the court of ordinary which overruled a caveat to an application for a year’s support. The issues raised on appeal as contended for by the appellant are (1) whether the applicant was entitled to a 1966 Chevrolet alleged to be her deceased husband’s and (2) whether such automobile was in fact the property of caveator. Held:

The issue as to whether certain property set aside as a year’s support is in fact the property of the deceased, cannot be raised in the court of ordinary by a caveat which is tantamount to a claim to the property. The ordinary, or the court of ordinary, has no jurisdiction to try and determine conflicting claims to property. Hartsfield v. Hartsfield, 87 Ga. App. 707, 709 (75 SE2d 276); Dix v. Dix, 132 Ga. 630 (2) (64 SE 790). The jurisdiction of the superior court on appeal is not greater than that of the court of ordinary in which the case originates. Trusco Finance Co. v. Crowley, 86 Ga. App. 268, 270 (71 SE2d 294); Maloy v. Maloy, 134 Ga. 432 (2) (68 SE 80). Should a court of ordinary set aside as a year’s support property not that of the deceased’s estate, the judgment would not be binding as to third parties. Johnson v. City of Blackshear, 196 Ga. 652 (2b) (27 SE2d 316).

Argued September 8, 1970 Decided December 1, 1970 Rehearing denied December 16, 1970. Oze R. Horton, for appellant. Preston L. Holland, for appellee.

Moreover, in a trover suit between these same parties involving the same issues, this court considered the record of the application for a year’s support and held that the motion for summary judgment by the defendant (applicant here) should be granted as to the plaintiff’s (caveator here) claim of title to the automobile. Morris v. Morris, 121 Ga. App. 100 (172 SE2d 872). Therefore, that case is controlling here.

Judgment affirmed.

Bell, C. J., and Whitman, J., concur.