Hooks v. Stamper , 18 Ga. 471 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Was the Court right in refusing the motion to dismiss the appeal, and in allowing the clerical omission to fill up the bond, to be supplied by parol ? We think so, most clearly.

The party had done, as the testimony shows, all the law required of him to entitle him to an appeal. He had paid the cost and entered his own name, together with that of his security, upon the minutes, to bo filled up with the necessary bond. He could do no more. And the omission of the Clerk to write out the bond, must not be allowed to deprive him his Statutory right. Indeed, this clerical mistake is amendable, both by the Statutes of Jeofails and the Act of 1818. (Prince, 442.)

[2.] Was the Court right in sustaining the motion to dismiss the case ?

The will of Robert Hooks had been proven and admitted to record; and yet, it had no attesting witness, as appears from the probate itself. The witnesses who prove the execution of the will, do not pretend that it was attested. Indeed, it is conceded that it had no subscribing witnesses. The will was therefore utterly void, and of no effect, according to the Act of 1852, extending the provisions of the Statute of Frauds, as to realty, to all wills of personalty, executed after the 1st day of June, 1852. (Pamphlet Laws, 154.)

This will was made several months thereafter. It was competent, therefore, to move, at any time, to set aside the judgment of the Ordinary admitting this paper to probate. It was a nullity upon its face; and in favor of such, a judgment nothing could be presumed. The appeal must be re-instated.

We apprehend that the appellees will find themselves under no necessity to amend their pleadings; they have the right to do so. This point was so decided in Vance against Crawford, in the case of Marshall Keith’s Will. (4 Ga. R. 445.) It was there held, that the pleadings might be amended in the Superior Court, on an appeal from the Court of Ordinary.. According to the forms of proceeding in the- Ecclesiastical Courts, there were no pleadings as in the Common Law Courts. And we have fallen into error in supposing, that in conducting business before our Courts of Ordinary, or in the Superior Courts, when sitting on appeals from the Ordinary, that that strictness was necessary which was observed in the Common Law Courts.