Goodman v. Little , 96 Ga. App. 110 ( 1957 )

Carlisle, J.

By the terms of Code § 24-2609 the judges of the the superior courts must hold the superior courts of each circuit at the county site and courthouse (if any) of each .county, or other place therein designated by law; and orders passed in one county on matters over which the superior court of another county has jurisdiction are mere- nullities. Rogers v. Toccoa Power Co., 161 Ga. 524 (131 S. E. 517, 44 A. L. R. 534); Bankers Health & Life Ins. Co. v. James, 45 Ga. App. 346 (164 S. E. 684); Wright v. Cannon, 58 Ga. App. 268 (198 S. E. 301) and citations; Pollard v. Lumley, 66 Ga. App. 567 (18 S. E. 2d 575). Consequently, where certain appeals from the Court of Ordinary of Harris County are entered to the Superior Court of Harris County, the trial court is without jurisdiction to pass orders, or to hold hearings concerning such appeals in Muscogee County, and where upon appeal to this court error is assigned on such procedure, the orders so entered will be reversed. See also in this connection, Smith v. Ferrario, 105 Ga. 51 (31 S. E. 38).

Judgment reversed.

Gardner, P. J., and Townsend, J., concur.

Being under the misapprehension that equity had been invoked in the superior court by the heirs at law, this court transferred the bill of exceptions to the Supreme Court. The Supreme Court, however, returned the case to this court with the following opinion:

“The jurisdiction of the court of ordinary to revoke the letters of executorship (Code §§ 113-1229, 113-1101), and to require the executor to make an accounting and settlement to the heirs (Code §§ 113-2201, 113-2202), is limited to the ease as one at law. The superior court on the trial of an appeal from the court of ordinary has no broader powers than the court of ordinary itself had. Maloy v. Maloy, 134 Ga. 432 (68 S. E. 80); Ingraham v. Reynolds, 176 Ga. 772, 773 (168 S. E. 875); Griffin v. Securities Investment Co., 181 Ga. 455 (182 S. E. 594). The case on appeal from the court of ordinary brings the whole case up for a new hearing. Code §§ 6-201, 6-501. ” In Stansell v. Massey, 92 Ga. 436 (17 S. E. 821), it was said: Tn trying an appeal from a county court, the superior court can reach no result which could not have been reached in the county court had the case been finally disposed of there. It follows that on the trial of such appeal the superior court cannot entertain an equitable petition offered by the defendant as an amendment to a plea of the general issue, which petition contemplates and prays for relief which only a court of equity, or a court of law exercising full equity powers, could administer, such as the rescission of contracts, the cancellation of promissory notes, injunction, etc.’ In McDowell v. McDowell, 194 Ga. 88 (20 S. E. 2d 602), it was held that this court had no jurisdiction to review an order overruling a demurrer filed by the executor to a petition, pending an appeal in the superior court from the court of ordinary, which prayed for an accounting and for revocation of letters testamentary, and the case was transferred to the Court of Appeals. See also Dillon v. Sills, 181 Ga. 582 (183 S. E. 563); Snell v. Lopez, 211 Ga. 60 (84 S. E. 2d 45).

“The case of McCord v. Walton, 192 Ga. 279 (14 S. E. 2d 723), which is relied upon by the defendants in error to sustain their contention that the filing of their petition in the superior court, to require the executor to give an additional bond, converted the appeal case into an equity case, does not support them. In that case, while a proceeding was pending in the court of ordinary to require the executor to make an accounting, the plaintiff filed an independent bill in equity against the executor, alleging waste, mismanagement, commingling of funds, and insolvency, together with incompetency from habitual intoxication, and prayed for an accounting, injunction, and the appointment of a receiver. As against a general demurrer, the petition was held to state a cause of action. In the instant case, the defendants in error, in their petition filed in the appeal case, sought no relief other than the relief sought originally in the court of ordinary. It was a case at law both before and after the appeal. The orders complained of are reviewable solely by the Court of Appeals, and the writ of error must be returned to the Court of Appeals.” Goodman v. Little, 213 Ga. 178 (97 S. E. 2d 567).