Whitehurst v. Singletary , 77 Ga. App. 811 ( 1948 )

I do not concur in the ruling that such an ex parte case as is here involved can be appealed from the ordinary or court of ordinary, but since the effect of the judgment is the same I concur in the judgment of affirmance. While Code § 6-916 eliminates the service of notice in ex parte cases it does not specifically authorize an appeal in such a case as this. The Supreme Court in Findlay v.Whitmire, 15 Ga. 334, was inclined to think that such an appeal was authorized, but it did not so rule, and if it had so ruled in that case, the ruling would have been obiter because there were adversary parties in that case. In Burney, administrator of Joseph Blount, dec'd., 29 Ga. 33, the Supreme Court expressly held that there was no provision for such an appeal. The allowance of extra compensation is not binding on parties at interest where made on ex parte petition. Code, § 113-2008. Where it is allowed ex parte, it may be reviewed by the superior court, not on appeal, but in a separate proceeding between adversary parties. Gairdner v. Tate,110 Ga. 456 (35 S.E. 697). In every other case we have been able to find where the subject of extra compensation was involved there were adversary parties. I cannot agree that an ex parte order would be binding on a minor when he was not represented, and I think this case inferentially permits such a result. If a guardian ad litem had been appointed for the minor and there had been a trial, the case would be different.