Gleason v. Traynham & Ray , 111 Ga. 887 ( 1900 )

Cobb, J.

1. Where a case was submitted to the presiding judge without the intervention of a jury, and a judgment in favor of the plaintiff was rendered, an assignment of error in the bill of exceptions upon this judgment, in the following language, was sufficiently specific: “To which judgment the defendant excepts, assigns the same as error, and says the court erred in finding any sum for the plaintiffs, and that under the law and facts his judgment should have been in favor of the defendant.”

2. If a cause is submitted to the presiding judge to decide both as to the law and the facts, a writ of error will lie to his decision, though no right to except was expressly reserved. Morrison v. Ponder, 45 Ga. 167.

3. The claim of the widow and children for a year’s support, with the exception made in the Civil Code, §3472, will as to realty take precedence of any lien with which the deceased husband and father incumbered his title, or which arose by operation of law against the property owned by him during the term of his ownership. Civil Code, §§ 3424, 3465 ; Cole v. Elfe, 23 Ga. 235; Barron v. Burney, 38 Ga. 264 ; Rust v. Billingslea, 44 Ga. 306; Murphy v. Vaughan, 55 Ga. 361.

4. It follows from the foregoing that the claim of the widow and children for a year’s support is superior to a materialman’s lien upon the properfcy of the decedent, which attached to the property' as the result of a contract made by him in his lifetime.

Argued July 24,— Decided August 9, 1900.

Foreclosure of lien. Before Judge Gober. Cobb superior court. November term, 1899.

Glay & Blair, for plaintiff in error. Lumpkin & Colquitt, contra.

5. The ruling now made does not in any way conflict with the decision in Boynton v. Westbrook, 74 Ga. 68. It was simply ruled in that case that the lien of a contractor for material and work would take precedence of a claim of the widow on account of a debt due her for trust funds in the hands of her deceased husband. The question of the dignity of a widow’s claim for a year’s support was not involved in that case.

6. The judgment entered in the present case, not being in accord with the principles above announced, must be' reversed.

Judgment reversed.

All the Justices concurring.