Hooks v. Hooks , 197 Ga. 482 ( 1944 )

1. Where complainants as heirs at law brought suit against another heir, alleging that the deceased died intestate, and that the defendant had taken possession of the property of the deceased, and refused to account to the plaintiffs for any interest therein, and where on the trial it was shown that the deceased did not die intestate, but on the contrary left a will which had been duly admitted to probate, naming the defendant as executor, and except for one item not involved in the present litigation, bequeathed and devised to the defendant all of her property, it was not erroneous for the trial judge, who by consent of the parties heard the entire case without a jury, to enter a finding in favor of the defendant.

2. Where on the application to probate a will in solemn form only one of the persons at interest files a caveat, and the ordinary finds in favor of the propounder, and this caveator alone enters an appeal to a jury in the superior court, and the appeal is dismissed, other heirs at law can not thereafter file by way of intervention a caveat in the superior court in the case once appealed thereto.

3. Persons duly notified of the proceeding to probate the will in the court of ordinary, who do not appear therein as caveators or join in an appeal to a jury in the superior court, are not parties to the case in the superior court.

4. Where, after the appeal reached the superior court and over the objection of the propounder, the caveat filed by the intervenor above referred to had been placed on the trial calendar. The judge of the superior court passing on a motion by the propounder to dismiss the intervention on the ground that there was no case pending at the time of the filing of the intervention because the appeal had been dismissed by the appellant with the consent of the opposite party, entered an order sustaining the motion to dismiss the intervention for the reason that the appeal from the court of ordinary had, before the filing of the intervention, been duly and legally dismissed, and that there was no case pending in the superior court, such order of the judge was an adjudication that the appeal had been dismissed at the time the intervention was filed.

Nos. 14800, 14826. MARCH 8, 1944. REHEARING DENIED MARCH 15, 1944. Thomas Hooks II brought in Bibb superior court an equitable petition for partition against T. W. Hooks in the latter's individual capacity. The plaintiff was a nephew, and the defendant a brother of Miss Dorothy Hooks, who died a resident of Laurens County. Other nephews and nieces intervened as parties plaintiff. The allegations were that the defendant had taken possession of all the property, real and personal, of Miss Hooks, and had refused to account to the plaintiffs for any interest therein, although they were among the heirs at law of Miss Hooks and entitled to a portion of her estate, the allegation being that "Miss Dorothy Hooks died intestate so far as plaintiff is concerned." Besides demurring, the defendant answered, denying that there was any tenancy in common between him and the plaintiffs, and averring that Miss Hooks had left a will which had been duly probated in solemn form. The case as thus made was heard by the judge without a jury, and he found for the defendant. The will was in evidence, by the terms of which the entire estate except the sum of one thousand dollars, as to which there is no controversy, was bequeathed and devised to T. W. Hooks, who was named and who qualified as executor.

The record discloses that application was made to the court of ordinary to probate the will in solemn form; that service was had on all parties at interest; that J. S. Hooks, an heir at law, filed a caveat; that an order was entered at the March term, 1942, to wit, March 2, ordering that the will be admitted to probate in solemn form, and that letters testamentary issue to the nominated executor. On March 4, 1942, J. S. Hooks entered his appeal to a jury in Laurens superior court. There next appears the following: "Laurens superior court, April term, 1942. J. S. Hooks, caveator, v. T. W. Hooks, executor last will and testament of Miss Dorothy Hooks, deceased. Appeal from court of ordinary. Filed in office this 6 day of March, 1942. J. B. Bedingfield, clerk. The issue, the subject matter of the within appeal, having been settled, the within appeal is hereby dismissed and the costs paid. This June 13, 1942. Lester F. Watson, attorney for appellant."

Thereafter, to wit, on June 22, 1942, Thomas Hooks II filed in the office of the clerk of Laurens superior court an intervention whereby he sought to make himself a party to the above-stated proceeding, i. e., the petition to probate in solemn form, entered his caveat to the probate of the will in question, and asked that his case be placed on the court calendar for trial. Over the objection of T. W. Hooks, the court entered the following order: "This case is ordered put upon the docket for trial in due course. This July 20, 1942. R. E. Camp, Judge." Exceptions pendente lite were taken to this order, the exceptions also containing the following recital: "It appearing that the said appeal was dismissed and withdrawn with the knowledge and consent of the adverse party, T. W. Hooks."

Next in sequence is a written motion by T. W. Hooks, appellee, to strike and dismiss the intervention filed by Thomas Hooks, on the following grounds: "1. Said intervention fails to show any reason, legal or equitable, why it should be considered and allowed by the court. 2. Said intervention should be dismissed because it appears that Thomas Hooks acknowledged service of notice to probate said will in solemn form on March 2, 1942, but thereafter made no appearance in said probate proceedings, filed no caveat therein, and took no part in the appeal from the court of ordinary to Laurens superior court. 3. Because said Thomas Hooks was not a party to said cause when the appeal of J. S. Hooks was dismissed and withdrawn on June 13, 1942, with the consent of the opposite party. 4. That the appeal of J. S. Hooks was withdrawn on June 13, 1942, and when said Thomas Hooks undertook to intervene on June 22, 1942, the above-stated case was not pending in the court, the same having been dismissed, and said intervention comes too late and should be stricken from the docket, because there was no issue of any kind in said cause before the court for determination. Wherefore movant prays that said intervention be disallowed and stricken from the docket, and that judgment for costs be taken accordingly."

On the hearing the plaintiffs introduced testimony by T. W. Hooks, as follows: The heirs at law of Miss Dorothy Hooks were, as stated in the suit, T. W. Hooks, the defendant, J. S. Hooks, a brother, and Nathaniel, Nancy, and Martha Hooks, the only heirs and minor children of a deceased brother, James Hooks. There was also testimony by F. H. Hattrich that the estate of Miss Dorothy Hooks was worth, as near as he could value it, and in his opinion, $75,000, and that he was familiar with it. The plaintiffs also introduced evidence that the superior court of Laurens County meets on the fourth Mondays in January, April, July, and October, and that no litigated cases were tried at the April term, 1942. The plaintiffs also introduced in evidence a caveat filed by Thomas Hooks II in Laurens superior court on June 22, 1942, to the probate of the will of Dorothy Hooks on the petition of T. W. Hooks, which caveat adopted that of J. S. Hooks, and contained the further ground that the will offered was not the will of Dorothy Hooks but of another, and was not freely and voluntarily executed, and she was not mentally capable of making the will offered for probate.

The judge found for the defendant, T. W. Hooks. In the main bill error is assigned on a ruling sustaining the general demurrer of the defendant to that part of the petition relating to personal property; on the admission in evidence of the proceedings admitting the will to probate in common form; on the admission in evidence of the will itself; and on the final judgment in favor of the defendant. The cross-bill assigns error on so much of the ruling of the court as overruled the demurrers of the defendant to so much of the petition as related to the real estate, and to an accounting for plaintiffs' share of the rents, issues, and profits thereof. A number of points of law are raised, but there is one controlling question to which all the others are subordinated. There is no conflict in the evidence, and if it demands a finding in favor of the defendant with respect to his contention as to the will, it must follow as a matter of course that the plaintiffs are not entitled to any of the relief sought, and an affirmance of the main bill would be the logical step, regardless of other questions in the case. That the will, offered for probate in solemn form in the court of ordinary, was there admitted to probate, and letters testamentary were issued to the executor therein named, is established. This was done after all parties at interest were duly notified. Only one of them appeared. He filed a caveat, and entered an appeal. The others were not parties. Swift v. Thomas, 101 Ga. 89, 91 (28 S.E. 618); Samples v. Samples, 194 Ga. 383 (21 S.E.2d 601). Whether or not the action of appellant's counsel in undertaking to dismiss the appeal, referred to in the statement of facts, accomplished that result, need not be decided, in view of the fact that the record shows a judgment unexpected to, holding that at the time Thomas Hooks II filed his intervention, the appeal had previously been duly and legally dismissed, and that thereafter there was no case pending in which an intervention could be filed. Nor need it be decided whether the decision of the judge theretofore rendered, in placing the caveat of Thomas Hooks II on the docket for trial, was a ruling that Thomas Hooks II was in time with his caveat, because if that position be sound, it should have been urged as a reason why the judge of Laurens superior court erred in adjudging later that the appeal of J. S. Hooks had been duly and legally dismissed on July 13, 1942, more than a week before Thomas Hooks II undertook by way of intervention to file a caveat. However, Judge Camp, on motion of counsel for T. W. Hooks, denied the intervention and struck it from the docket, on the grounds, among others, that Thomas Hooks was not a party to the cause when the appeal of J. S. Hooks was dismissed and withdrawn on June 13, 1942, and that when Thomas Hooks II undertook to intervene on June 22, 1942, the case was not pending in the court, and there was no issue of any kind before the court for determination. In reply to this position, counsel for the plaintiff contends that the order of Judge Camp, entered on the aforesaid motion, was not an adjudication that the appeal of J. S. Hooks had been dismissed before the intervention was filed, but that he merely gave as a reason for striking the same from the docket that the appeal had already been dismissed; and counsel relies on the line of cases holding that error can not be assigned upon mere reasons given by the judge for the judgment rendered. Griffith v. Finger, 115 Ga. 592 (41 S.E. 993). This rule is well recognized. See Richter v. Cann, 191 Ga. 103 (11 S.E.2d 774), and cases there cited. It has no application, however, to the facts here shown. When a motion was made in Laurens superior court to dismiss an intervention in a named case that had been appealed from the court of ordinary, and the motion was based on the ground that the case was not pending at the time the intervention was filed, but that on the contrary the appeal had theretofore been dismissed with the consent of the opposite party, and that in passing on the motion, the judge entered an order sustaining the same "for the reason that the appeal of J. S. Hooks was duly and legally dismissed on June 13, 1942, and after that there was no case pending further in this court," this was an adjudication that the appeal had been dismissed at the time the intervention was filed. It was a finding in a case to which Thomas Hooks II and T. W. Hooks were parties, and was a judgment binding on the parties, and as between them established the fact that the appeal from the judgment of the court of ordinary admitting the will to probate had been dismissed. "An appeal shall suspend but not vacate judgment; and if dismissed or withdrawn, the rights of all the parties shall be the same as if no appeal had been entered." Code, § 6-502. Therefore the effect of the dismissal of the appeal was to make effective the judgment of the court of ordinary. The other heirs of Miss Hooks who intervened in the case and adopted the allegations and prayers of the petition must share the same fate as Thomas Hooks II, whose case was bottomed on a main contention disproved at the trial. Since it was proved that Miss Hooks left a will, which had been duly probated, as shown by this record, the complainants' case fell. Since in no event were they entitled to any of the relief sought, the judgment on the main bill is

Affirmed. Cross-bill dismissed. All the Justices concur.