Shoup v. Elliott
17 S.E.2d 839
| Ga. Ct. App. | 1941

In a suit against a husband and a wife to recover on a note, in which an injunction is sought against the husband to prevent him from disposing of his property in fraud of his creditors, and for the appointment of a receiver, and in which by amendment it is sought by the plaintiff to set aside a year's-support award obtained in the court of ordinary by the wife out of the estate of the husband who had died after the commencement of the suit, the case is one in equity, although verdict and judgment are rendered for the plaintiff on the note, and no equitable relief is granted.

DECIDED JUNE 11, 1941.
Mrs. Mary C. Elliott brought suit against Richard C. Shoup and Mrs. Pearl Peck Shoup on a note, and in the petition sought an injunction against the husband to prevent him from disposing of his property in fraud of his creditors, and appointment of a receiver therefor. Shoup died, and a year's support was awarded to Mrs. Shoup out of his estate. The plaintiff offered an amendment in which she sought cancellation and invalidation of such year's support, and to have it set aside on the ground of fraud, etc. To this amendment Mrs. Shoup demurred. The court sustained the demurrer to so much of the amendment as sought cancellation and invalidation of the year's support, and the plaintiff excepted pendente lite. The trial resulted in a verdict and judgment for the plaintiff on the note, and no equitable relief was granted. Mrs. Shoup moved for a new trial, assigning error on the verdict and judgment. This motion was overruled, and Mrs. Shoup excepted. The plaintiff presented and had certified a cross-bill of exceptions, in which she assigned error on the sustaining of the demurrer of Mrs. Shoup to the amendment in which she sought to set aside the year's support granted to Mrs. Shoup. This *Page 112 court certified to the Supreme Court the question whether the case presented on the main bill of exceptions and on the so-called cross-bill of exceptions is a case in equity in which that court, and not the Court of Appeals, has jurisdiction under the constitution of this State. The Supreme Court answered the question in the affirmative, holding that the case was one in equity, of which the Supreme Court and not this court had jurisdiction. Shoup v. Elliott, 192 Ga. 213 (14 S.E.2d 736). Accordingly the bills of exceptions are

Transferred to the Supreme Court. Sutton and Felton, JJ.,concur.