Barksdale v. Cobb , 16 Ga. 13 ( 1854 )

By the Gourt.

Lumpkin, J.

delivering the opinion.

Two questions only are made in this record. 1st. Was the 1 Ordinary of Upson right in refusing to grant temporary letters, ■on the ground that the securities, although ample, resided, all ■of them, in the neighboring county of Talbot? 2d. Was mandamus the proper remedy ?

[1.] Upon the first ground, we are not prepared to sustain the Ordinary. We think that the bare fact that the securities •reside in a different county from the one in which the application is made, is not of itself, a sufficient reason for refusing" administration, either temporary or permanent.

We would not be understood as holding, that in every instance, and under all circumstances, the Ordinary should be -compelled to accept securities residing out of the County, provided they were solvent. Their residence might be so remote ¡as to justify him in withholding letters. Por we are not un- ■ mindful of the necessity and importance of enabling that officer* as well as the heirs, of maintaining a proper supervision and ■control over the circumstances and condition of the parties. No such reason as that, however, exists, or is pretended to exist in the present instance..

[2.] Was mandamus against the Ordinary, the proper remedy?

Under the old Law, and before the re-organization of the Court of Ordinary, a distinction was made between letters-which were granted to collect and take care of the estate until a permanent appointment was made, and letters pendente lite. The former, under the Act of 1799, were granted by the Clerk merely, without the action of the Court — the latter, by the Court itself. And we do not see that the alteration in the Constitution has abolished this distinction.

Now, when permanent letters are applied for, the Ordinary, acting as Clerk merely, and in vacation, may grant temporary letters ad collegendum bona dejiniti. But if letters pendente• lite are granted, it must be by the Ordinary, acting in his Judicial character. His refusal, in the present instance, was by him, sitting as a Court. It was the judgment of the Ordinary. And the new Law, as well as the old, provides, that from every such decision an appeal lies to the Superior Court. And that, we think, was not only the appropriate, but the only remedy in the case. Having this specific redress provided by Statute, mandamus will not lie.

And such, we believe, has been the universal construction put upon the late Law. Nor is it true, in point of fact, that the proceeding, by appeal, would be productive of either more-delay or expense than a resort to a mandamus. Indeed, in both of these respects, the appeal, we apprehend, has the advantage. But whether this be so or not, it being allowed by Law, mandamus will not lie. And on this ground, the judgment below is affirmed.