100 Ga. 591 | Ga. | 1897
E. J. Roulett, claiming an instrument, dated March 2d,. 1895, in which he was nominated executor, to be the last will of Margaret Roulett, offered it for probate in solemn form in the court of ordinary of Richmond county. To the probate of this instrument a caveat was filed by the heirs at law, save one, of said Margaret, on the grounds, (1) that at the time of the signing thereof said Margaret was-not of sound and disposing mind and memory; (2) that it was not her free and voluntary act, but was executed under' the undue influence of said E. J. Roulett; and (3) that it was not her last will and testament. Before the issues, made by this caveat were heard, P. M. Mulherin, 'in the same court, offered for probate in solemn form, as the last' will of said Margaret, an instrument dated May 11th, 1892, in which he was named executor. Mulherin was no party to Roulett’s proceeding, in which only the instrument in which Roulett was named executor was in issue; while in Mulherin’s proceeding Roulett and all the heirs of Mrs. Roulett were parties and both wills were in issue; and in this proceeding, and in this alone, could have been rendered a judgment covering all the issues and binding all parties. Both cases came on for hearing on the same day. In theRoulett case, which was first tried, judgment was rendered probating in solemn form the instrument propounded by him. Mulherin then requested a hearing on the petition to-
1. The sole question that we are to pass upon is, whether the court below erred in overruling the motion to strike Mulherin’s case from the assignment docket and finally dismiss it; all other questions, whether made in the proceedings begun by Roulett or those begun by Mulherin, being left for determination in the court below when the case comes on for trial. Rone of the grounds of the motion to dismiss the appeal in Mulherin’s case and the application filed therein were based upon defects appearing on the face of the proceedings in.that case; and as a motion to dismiss must necessarily be predicated upon defects appearing on the face of the pleadings, it follows that there was no error in overruling such motion. As the refusal to grant the motion to strike the case from the assignment docket did not involve any final disposition of the case, the assignment of error thereon cannot be considered by this court.
2. The question involved in the two cases is, which, if either, of the instruments presented for probate is the last will of Margaret Roulett. The trial of one case would not necessarily, determine the other, as a verdict in one for the caveat would not establish the instrument propounded in the other, and a verdict in Roulett’s case, finding that the paper offered by him was the last will of Margaret Roulett, would not be binding upon Mulherin, because he is not a party to Roulett’s proceeding. ¥e are, therefore, of the opinion, in view of the complications that might arise from separate trials and the facility with which the whole matter may be determined by consolidating the cases, that the trial judge might, in his discretion, pass an order directing that the two cases be consolidated and heard together, and in
Judgment affirmed.