The executor moves for a rehearing on the ground that this court "predicated its judgment upon the assumption" of certain controlling facts, "that the return of the appraisers . . was approved and recorded by the ordinary," whereas the record shows only that the appraisers filed their return, that objections thereto were filed; that "the matter was appealed by consent to the superior court, and the judgment of the court of ordinary was thereby expressly waived;" and "the record therefore shows that the first judgment that was entered by any court, after the filing of the objections, was the judgment of the superior court . . and until that date the title could not and did not vest in the widow."
The question thus presented is now in this motion raised for the first time. Since the decision of the Court of Appeals and the contentions of the parties were apparently based on the assumption that the appeal from the court of ordinary had been preceded by a judgment in that court on the objections filed, or the equivalent of such a judgment, no reference was made to a situation such as is now presented.
However, the contentions of the movant are without merit. InBrown v. Anderson, 13 Ga. 171 (4), 180, it actually was made to appear that an appeal by consent had been entered from the court of ordinary to the superior court before any decision was made by the ordinary, and while a caveat to a will remained pending. This *Page 609 court, speaking through Judge Nisbet, held that even though under the then existing statutes, as now, "a party is not entitled to an appeal from the ordinary as matter of right until there is a decision in that court" (Act of 1805, Cobb, 283, as amended; Code, §§ 6-201, 6-202), and even though "in strictness of law, there can be no appeal until the ordinary has fulfilled his functions," since "the constitution and the law make the decision itself the matter appealed from" — yet an appeal by consent before a decision is not "violative of these propositions," but"it is equivalent to a confession of judgment;" that "it is competent for the parties to appeal by consent without paying cost or giving bond, and without affidavit of inability to do so;" that these conditions may be waived; and therefore that no actual decision by the ordinary was necessary.
Since the present motion thus necessarily recognizes that, by the consent appeal, "the judgment of the court of ordinary was . . expressly waived," and since such an express waiver had the same legal effect as a formal decision or judgment of the court of ordinary as to the matter at issue, it follows that the status of the widow as to her title was the same as if the decision or judgment had been formally rendered.
Rehearing denied. All the Justices concur, except Reid, C.J., and Duckworth, J., who dissent.