Hall v. First National Bank of Atlanta

85 Ga. App. 498 (1952) 69 S.E.2d 679

HALL
v.
FIRST NATIONAL BANK OF ATLANTA.

33896.

Court of Appeals of Georgia.

Decided February 28, 1952.

Lucian J. Endicott, for plaintiff.

Spalding, Sibley, Troutman & Kelly, James M. Sibley, James A. Branch Jr., W. K. Meadow, for defendant.

FELTON, J.

1. An executor is a proper party to object to the allowance of a year's support. Dorsey v. Georgia Railroad Bank &c. Co., 82 Ga. App. 237 (60 S. E. 2d, 828).

2. Whether or not it would be an abuse of discretion for the ordinary, or the superior court on appeal from the court of ordinary, to vacate a judgment allowing a year's support at the term at which it is rendered, when the petition to vacate the order alleges no reason why objections were not filed before the court acted on the petition for a year's support (Foster v. Turnbull, 126 Ga. 654, 55 S. E. 925), such a court would have jurisdiction and power on motion to set aside such a judgment for fraud. Power v. Green, 139 Ga. 64 (76 S. E. 567); Davis v. Albritton, 127 Ga. 517 (56 S. E. 514); Walker v. Hall, 176 Ga. 12 (166 S. E. 757, 759); Gormley v. Watson, 48 Ga. App. 46 (171 S. E. 880).

3. An appeal to the superior court is a de novo investigation. Code, § 6-501. such a case must be tried anew as if no trial had been had. Moody v. Moody, 29 Ga. 519; Hill v. Hill, 55 Ga. App. 500, 501 (190 S. E. 411); Roe v. Pitts, 82 Ga. App. 770, 772 (62 S. E. 2d, 387); Bowman v. Bowman, 79 Ga. App. 240, 242 (53 S. E. 2d, 244). It is not the province of the superior court on such an appeal to review and affirm or reverse the rulings of the ordinary, but to try the issues anew and pass original judgments on the questions involved as if there had been no previous trial. Accordingly, the judge of the superior court erred in this case in not passing upon the demurrer and objections to the petition to set aside the judgment allowing the year's support. If the judge should overrule such demurrer and objections, it would be his duty to try the issues made by such petition and defensive pleadings according to the law in such cases made and provided.

Judgment reversed. Sutton, C. J., and Worrill, J., concur