21 S.E.2d 601 | Ga. | 1942
1. An heir at law who participates in a proceeding to probate an alleged will of his decedent in solemn form only to the extent of acknowledging service thereon in the ordinary's court, without being a party to or represented in a caveat thereto, either in the ordinary's court or on appeal in the superior court, is not such a party interested in sustaining the judgment of the court below as must be named and served as a defendant in error; nor can be, in such case, be a party plaintiff in error in a bill of exceptions to this court. Therefore a motion to dismiss the writ of error on the ground that such a person is required to be a party defendant in error, and a motion to make such person a party plaintiff in error, are denied.
2. Where it appears, on an appeal by an alleged executor to the superior court from a decision of the court of ordinary sustaining a caveat to an alleged will, that the sole security on the appeal is the same security who signed the executor's bond upon qualification after probate of the same instrument in common form, it is not error for the court, on motion, to dismiss such appeal.
Later the plaintiff in error offered in this court an amendment to the bill of exceptions, praying that Roy C. Samples be designated a party plaintiff in error, which amendment was agreed to in writing and verified by the proposed party.
In Swift v. Thomas,
2. The question to be decided is whether or not the judge of the superior court erred in sustaining the appellees' motion and in dismissing the appeal because the sole security upon the appeal bond was also the sole security of the executor's bond previously given in the court of ordinary. The Code, § 6-204, declares: "In all cases in the court of ordinary, the party desiring to appeal, his attorney at law or in fact, shall pay all costs that may have accrued, and give bond and security to the ordinary for such further costs as may accrue by reason of suchappeal." (Italics supplied.) Such bond is required to be filed in the court of ordinary. Sims v. Walton,
Judgment affirmed. All the Justices concur.