Speer v. Speer , 1885 Ga. LEXIS 299 ( 1885 )

Blandeord, Justice.

John A. Speer, of Troup county, died November 8th, 1879, leaving the defendant in error his widow, and no child. He left a will, by which he appointed the plaintiffs in error his'executors. This paper was propounded before the court of ordinary for probate in solemn form of law, as the last will and testament of testator, by the executors named in the same. Service was acknowledged on the petition and citation for probate by Mrs. E. Speer, the widow, November 19th, 1879. At the December term, 1879, of the court of ordinary, the paper was admitted to probate in solemn form of law. On the fourth of February, 1884, the defendant in error filed her petition to the court of ordinary, praying to have the probate of said will revoked and set aside upon several grounds mentioned therein. The case was carried by appeal to the superior court.

On the trial of the case in the superior court, the plaintiffs in error demurred to the sufficiency of the petition on several grounds. The demurrer was overruled by the court, and this is the first exception upon which error is assigned.

The plaintiffs in error then filed their answer to the petition^ and the parties being at issue, much evidence was submitted, on the trial of this case. The jury having found the issues submitted in favor of the defendant in error, the plaintiffs in error moved the court for a new trial, upon various grounds, which will be found in the report of this case. The court overruled the motion for new trial, and this judgment is excepted to, and to review and reverse this ruling of the court this writ of error is prosecuted to this court.

We are of the opinion that the demurrer of plaintiffs m error to the petition filed by defendant in error should have been sustained, because, this being a proceeding to vacate and set aside a judgment of a court in a proceeding in which the movant was a party, and had been served, or acknowledged service of the same, it should have been made within three years from the rendering of said judgment. Such is the law as expressly declared by our Code, sec. 2914 (a); 61 Ga., 296 ; 64 Id., 497. Over three years had elapsed before this motion was made, and the petition does not show any sufficient reason in law why the motion was not made within the time prescribed by the statute. This is sufficient to determine this case without more, as we are fully satisfied from the facts, as disclosed by the record, that the executor acted fairly and in good faith to the defendant in error, and that his conduct is freo from all fraud. Besides, we are satisfied that, from the evidence-in the case, the paper propounded was the last will and testament of the deceased, John A. Speer, and if the judgment was opened, the court would have to so declare.

The court should have granted a new trial in this case, the verdict being without evidence to support it.

Judgment reversed.