Rowe v. Rowe , 113 Ga. App. 684 ( 1966 )

Franicum, Judge.

1. In a proceeding brought under the provisions of Code Ch. 31-2, for the assignment of dower, the contention of the executors of the estate involved that there had been no proper and timely notice, as required by the provisions of Code § 31-202, to one of the co-executors, who was a nonresident, was waived by the prior or simultaneous appearance of the executors to defend on the merits of the case by the filing of a general demurrer to the petition. Wilson v. City Council of Augusta, 165 Ga. 520, 522 (141 SE 412).

2. The sole contention made by the executors in connection with their general demurrer to the petition that the right to dower is a personal right which must be exercised by the widow herself and cannot be exercised for an incompetent widow by her guardians is not meritorious. LaGrange Mills v. Kener, 121 Ga. 429 (49 SE 300). The trial court, under the authority of the cited case, did not err in overruling the general demurrer to the petition for dower, insofar as it sought to present the aforesaid contention.

3. The only other contention made by the appellants to the effect that the applicant improperly sought by amendment to convert the original statutory action into an equitable proceeding “without following the method of process or service as required by the laws of the State of Georgia for an equitable petition” was decided adversely to the contentions of the appellants by the judgment of the Supreme Court, to which this case was originally carried on appeal, transferring this case to this court and holding that the action was not one seeking any equitable relief.

Submitted May 2, 1966 Decided May 17, 1966. Beverly B. Hayes, for appellants. Jones & Douglas, Dubignion Douglas, for appellees.

Judgment affirmed.

Felton, C. J., and Pannell, J., concur.