Parks et al., administrators, vs. Johnson

Supreme Court of Georgia1888-02-20

79 Ga. 567

Summary · law.co

Holding. The court reversed the judgment, holding that objections to a widow's application for year's support must be filed at or before the court term named in the citation, not after four weeks of publication expires, and that the administrators' objections filed two days before the March court term were therefore timely filed.

Appraisers appointed to determine a year's support for a widow and her minor children from her deceased husband's estate filed their return with the ordinary (a judicial officer). The ordinary issued a citation requiring interested parties to appear and show cause why the application should not be granted, with notice published over four weeks. The estate administrators, claiming to be creditors, filed objections to the application, but did so two days before the scheduled court term in March 1887. The lower court dismissed the administrators' objections, reasoning that they were filed too late under the four-week publication requirement.

The central dispute concerned how to interpret the applicable statute governing the timing for filing objections to a year's support application. The administrators argued the court erred in dismissing their timely-filed objections, while the widow's representatives contended the objections should have been barred because they were filed before the full four weeks of publication had elapsed.

The Supreme Court held that objections to a year's support application must follow the same procedural rules as objections to the appointment of permanent administrators—namely, that objections may be filed at or before the court term referenced in the citation, rather than waiting for four weeks of publication to expire. Since the objections here were filed two days before the March court term, they were timely.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Proper timing for filing objections to year's support applications
Interpretation of statutory citation and notice requirements
Procedural alignment between year's support proceedings and administrator appointment proceedings

Procedural posture

The administrators appealed to the superior court after the ordinary granted the widow's application for year's support, but the superior court dismissed their objections as untimely; the administrators sought review by writ of error.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bleckley, Chief Justice.

Appraisers to set apart a year’s support for Mrs. Johnson and her children out of the estate of their deceased husband and father, having made their return, the ordinary issued a citation in these terms:

“ State of Georgia — Quitman County.

To all whom it may concern:

“Mrs. Nannie J, Johnson, widow of Neri Johnson, late of said county, deceased, having in due form made application to me for twelve months’ support out of the estate of said Neri Johnson, for herself and minor children, I will pass upon the same the first Monday in March next.

“ Given under my hand and official signature, this 27th January, 1887. M. L. Albritton, Ordinary.”

The administrators, alleging that they were creditors of the estate, filed certain objections, on March 5th, 1887. Upon the same day, counsel for both parties entered into a written consent to transfer the matter by appeal to the superior court, and an order granting the appeal was passed accordingly by the ordinary. When the appeal came up for trial, it appeared that the citation was first published on the day of its date, and successively for four weeks thereafter; and for this cause, counsel for the widow and children moved to dismiss the objections, upon the ground that the objections were not filed in time; which motion the court granted.

The question is, whether the court correctly construed the act of October 9th, 1885, altering section 2573 of the code. The act says that, “ upon filing said return, the ordinary shall issue citation and publish notice as required in the appointment of permanent administrators, citing all persons concerned to show cause why said application for twelve months’ support should not be granted; and if no objection is made after the publication of said notice for four weeks, or if made is disallowed, the ordinary shall record the return so made in a book to be kept for this purpose.” The ordinary shall issue citation and publish notice as required in the appointment of permanent administrators. Citation touching the appointment of administrators always contemplates that objections may be filed at or before the term of the court at which the appointment is to be made, or the subject-matter considered; and we think the same rule is applicable to the citation touching year’s support. Here the term of court referred to in the citation was that to be held for March, 1887, which was on the 7th day of the month. The. objections were filed two days before, and were therefore in time. It would be altogether a misconstruction of this act to hold, as the court below seems to have done, that the objections are to be filed before the expiration of four weeks from the first publication. Such a construction would be quite anomalous, and the one we put on the act brings this proceeding in harmony with the class of citations to which the act refers as a standard, and moreover, in harmony with the general current of judicial proceedings.

When this case was called, a motion was made to dismiss the writ of error, because the bill of exceptions set forth that the motion in the court below was to dismiss the appeal, that that motion was granted, and that the error excepted to was the dismissal of the appeal; whereas, according to the transcript of the record, the appeal was not dismissed, but on the contrary, the final order granted by the court was one dismissing the objections filed by the creditors. The plaintiffs in error thereupon moved to amend the bill of exceptions, so as to make the same recite the motion as one to dismiss the objections, and to carry that correction throughout the bill of exceptions. We think that, under section 4272(b) of the code, which says, “ No writ of error shall be dismissed in the Supreme Court of this State, when, by an amendment to the bill of exceptions, which is hereby declared to be lawful and allowable, any imperfection or omission of necessary and proper allegations could be corrected from the record in the case,” the amendment may be made, and leave to make it is granted ; and the motion to dismiss the writ of error is overruled.

Judgment reversed.