Hyatt v. Council , 36 Ga. App. 612 ( 1927 )

Broyles, C. J.

1. A petition was filed by a creditor of the estate of a decedent to set aside a judgment of the court of ordinary approving the return of commissioners awarding a year’s support to the widow and four minor children of the deceased. Under the facts and circumstances set forth in the petition, the judgment of the court of ordinary was not conclusive upon the petitioning creditor, and the court properly overruled the general demurrer to the petition. This is true although it appeared from the petition that the ordinary had duly complied with the statutory requirements as to issuing citation and publishing notice in regard to the application for the year’s support, that the petitioning creditor failed to file a caveat to the award of the commissioners, that nothing was done by anybody to prevent him from doing so, and that by the exercise of the slightest diligence he could have filed a caveat, setting up all the objections urged in his petition, at or before the term of the court of ordinary to which the award of the commissioners was made returnable. Hyatt v. Council, 163 Ga. 870 (137 S. E. 16), decided by the Supreme Court in answer to a question certified by this court.

2. It does not appear from the record that the court erred in any of its rulings upon the special demurrer interposed to the petition.

Judgment affirmed on both the main bill and the cross-bill of exceptions.

Lulce and Bloodworth, JJ., concur.