Montgomery v. Paradise

Where a caveat has been filed in the court of ordinary to the return of appraisers setting apart a year's support, and before the trial of the issue made by the filing of the caveat a suit is pending in which the applicant stands in the relationship of the plaintiff, she may dismiss the suit at any time before the trial. A dismissal or withdrawal by the applicant of the application for year's support, and on order by the ordinary dismissing such application, do not, either on the principle of res judicata or otherwise, preclude or estop the applicant from making, at a subsequent term of the court of ordinary, a second application for a year's support, and obtaining a judgment setting apart a year's support upon such application. Hill v. Hill, 58 Ga. App. 179 (198 S.E. 279). The judge of the superior court did not err in sustaining her appeal and in remanding the case to the court of ordinary.

Judgment affirmed. Stephens, P. J., and Sutton, J.,concur.

DECIDED APRIL 22, 1940. REHEARING DENIED JUNE 10, 1940. Mrs. W. A. Paradise applied to the court of ordinary for a year's support from the estate of her husband. Appraisers were appointed, and to their return Mrs. Ruth P. Montgomery filed a caveat and a demurrer. Mrs. Paradise dismissed her application before a hearing on the demurrer and caveat. Thereafter she filed a second application for a year's support, and the ordinary appointed other appraisers to set it apart. Before service of notice of the second application Mrs. Montgomery filed a motion to dismiss the same. After a hearing the ordinary dismissed the second application, and the applicant appealed. Both sides agreeing upon the facts, the judge of the superior court sustained the appeal and remanded the case to the court of ordinary. To this judgment exceptions were taken.