23 Ga. App. 618 | Ga. Ct. App. | 1919
On the first Monday in.September, 1903, L. Kennedy made application in the court of ordinary of Irwin county, for letters of administration upon the estate of William Wash, deceased, late a resident of that county. Citation was properly issued and notice thereunder given, and on the first Monday in October, 1903, the ordinary signed an order granting letters as prayed. Thereafter David Wash was appointed guardian for the minor children of the decedent, and on March 1, 1908, he filed a motion in the court of ordinary of Irwin county to vacate its judgment appointing L. Kennedy administrator; a rule was issued thereon and service made, and Kennedy, administrator, appeared and filed a demurrer and an answer. Hpon the hearing in the court of ordinary, at the May term, 1908, the demurrer was sustained and the petition dismissed. An_ appeal was taken to the superior court of Irwin county, and that court sustained the demurrer and dismissed .the petition. This judgment was reversed by the Supreme Court. See Wash v. Wash, 145 Ga. 405 (89 S. E. 364). When the case came on for a second hearing in the superior court of Irwin county the respondent amended his answer, and among other facts thus set forth were the following: that William
1. Even were it to be conceded that the court had jurisdiction over the subject-matter of the proceeding, the jurisdictional facts as above set forth being fully made to appear from the bill of exceptions and by the record, this court cannot hold that the court below erred in entertaining the motion to dismiss. Civil Code (1910), § 5665; Northern Contracting Co. v. Maddux, 144 Ga. 686 (4 b) (87 S. E. 892).
2. Under the provisions of the general act concerning the organization of new counties, approved August 21, 1905 (Civil Code of 1910, §§ 829 et seq), "When a new county is organized, the jurisdiction of all suits pending in the county or counties from which the new county has been laid off, of which, under the constitution and laws, the new county shall have cognizance, is' transferred immediately to the corresponding courts in the new county.” Prior to the passage of this act the creation of a new county did not per se deprive the court of ordinary of the original county of jurisdiction of subsequent acts pertaining to a pending administration; since, prior to the passage of that act, the right to transfer such proceedings was merely one of privilege (Knight v. Knight, 27 Ga. 633, 636); but after the passage of the act the court of ordinary thus having sole jurisdiction of. the pending administration would be the proper and sole court to entertain a proceeding to vacate or set aside the judgment appointing an administrator over whom it thus exercised its authority. Under the facts and circumstances existing, the judgment appointing the administrator must be considered as the judgment of the court of ordinary of Ben Hill county, upon its taking and assuming jurisdiction of the subject-matter. See also, as bearing somewhat upon the proposition, Atlantic & Birmingham Ry. Co. v. Johnson, 127 Ga. 392 (56 S. E. 482, 11 L. R. A. (N. S.) 1119).
Judgment affirmed.