Griffin v. Securities Investment Co. , 181 Ga. 455 ( 1935 )

Bell, Justice.

This ease arose in a court of ordinary, as an application for a year’s support. A caveat was filed; and after judgment allowing the application and awarding certain land, the caveator carried the case by appeal to the superior court. While the ease was pending in the latter court, the applicant by leave of the court filed, in aid of her application, a paper entitled an “equitable petition,” alleging that for reasons stated the claim of the caveator was not a debt against the estate, and that the caveator had no right to object to the allowance of the year’s support; but containing no prayer for equitable relief. The trial resulted in a verdict in favor of the caveator, and to a judgment refusing a new trial the applicant excepted. The bill of exceptions was returned to the Supreme Court. Held:

1. The case was not one respecting title to land. Colley v. Atlanta & West Point R. Co., 156 Ga. 43 (118 S. E. 712).

2. The paper filed in the superior court as an “equitable petition,” containing no prayer for equitable relief, did not convert the case into a suit in equity. “ Whether an action is one at law or in equity is determined by the allegations of the petition and the nature of the relief prayed, and not by the designation given to the action by the pleader.” Taylor Lumber Co. v. Clark Lumber Co., 159 Ga. 393 (125 S. E. 844). See also Burgess v. Ohio National Life Ins. Co., 177 Ga. 48 (169 S. E. 364); Burton v. Metropolitan Life Ins. Co., 177 Ga. 899 (172 S. E. 41).

3. Furthermore, the jurisdiction of the superior court, on appeal, was not greater than that of the court of ordinary, and was thus limited to a determination of the case as one at law. Maloy v. Maloy, 134 Ga. 432 (2) (68 S. E. 80); Department of Industrial Relations v. Travelers Ins. Co., 177 Ga. 669, 672 (170 S. E. 883).

No. 10973. November 15, 1935. M. B. Eubcmlcs, for plaintiff. Wright & Covington, for defendant.

4. The record does not present a case falling within the jurisdiction of the Supreme Court. See Coda of 1933, § 2-3005; and compare Holamon v. Jenkins, 50 Ga. App. 129 (177 S. E. 262); Gibson v. Gibson, 50 Ga. App. 345 (178 S. E. 181); Daniel v. First National Bank of Claxton, 50 Ga. App. 632 (179 S. E. 152).

Transferred to the Court of Appeals.

All the Justices concur.