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Ponce et al. vs. Underwood et al.

of that county, on the oath of John H. Little, who appears as one of the subscribing witnesses on said established copy. The defendants demurred to the complainants' bill on two grounds: First, because the paper set forth in the complainants' bill as having been established by the judgment of the superior court as the last will and testament of Isabella Ponce, deceased, was void for want of jurisdiction of that court to establish the lost will of the testatrix; and, second, because the testatrix was a married woman, and had no such separate estate in the land, or power of disposition over it, as would enable her to dispose of it by will, and that there was no equity in complainants' bill which would entitle them to relief. The court overruled the demurrer on the last ground taken, but sustained it on the first, and dismissed the complainants' bill. Whereupon both parties excepted.

1. We will consider the last ground of the demurrer first. Assuming that the alleged lost will of Isabella Ponce had been legally established, then, in our judgment, she had such an estate in a portion of the land, at least, conveyed to her sole and separate use as would have enabled her to have disposed of it by her last will and testament as her separate property, and for that reason the last ground of the demurrer was properly overruled. In relation to the first ground of demurrer, that the superior court had no jurisdiction to establish the alleged copy will set forth in the record as the last will and testament of Isabella Ponce, it is not an open question in this court. In Perkins vs. Perkins, 21 Georgia Reports, 13, it was held and decided that the superior courts in this state did not have the power or jurisdiction to establish copies of lost wills, and we concur in the ruling of the majority of the court in that case. The pretended will of Isabella Ponce, as set forth in the record, under which the complainants claim, is a mere nullity.

2. But it was insisted on the argument here, that although that may be so, still, that inasmuch as Dimas Ponce, the executor named in said copy will, offered the same for probate in the court of ordinary, and the same having been proven by John H. Little, and admitted to record, and Ponce having

Ponce et al. vs. Underwood et al.

been qualified as executor to execute the same, and letters testamentary having been granted to him, that he, and those claiming under him, with full knowledge of the facts, are now estopped from denying that the copy will established in the superior court is not the last will and testament of Isabella Ponce. The history of the case, as disclosed in the record, is substantially as follows: At the October term, 1862, of Hancock superior court, the copy will of the alleged testatrix was established. At the November term of the court of ordinary, 1862, of Hancock county, the copy will was probated on the oath of Little, and ailmitted to record, and Dimas Ponce qualified as executor, and letters testainentary were granted to him. At the March term, 1863, of the court of ordinary of said county, Dimas Ponce was, after the publication of the legal citation, appointed by the orilinary administrator on the estate of Isabella Ponce, deceased, the said Dimas making oath, in writing, that the deceased died withiout any valid last will and testament; that a last will of deceased had been established in the superior court of Hancock county, which he is advised by legal counsel, is invalid, etc., and then follows the usual oath to well and truly administer the estate as her administrator. In June, 1863, Dimas Ponce, as administrator of Isabella Ponce, after having given the legal notice of his application for leave to sell, obtained an order from the court of ordinary granting to him leave to sell eight hundred acres of land as the property of the said Isabella, the same being the lands claimed by complainants under the pretended will of the deceased. In pursuance of the order granting leave to sell the land, Ponce, as administrator aforesaid, after having duly advertised the same, sold the land at adininistrator's sale, at the court-house door, on the first Tuesilay in August, 1863, when the same was bid off by Underwood, one of the defendants in complainants' bill, for the sum of $8,000 00, and the said Ponce, as aılministrator, made him a deed to the laud. Is Underwood, the purchaser of the land at the administrator's sale, estopped from contesting the complainants' right to recover the land under the pretended

Bowie vs. Findly et al.

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will, which was a mere nullity for want of jurisdiction in the superior court to establish the same, although he may have had full knowledge of that void proceeding in the superior court, and the subsequent proceedings had in relation thereto by Ponce as the pretended executor under that void will? In our judgment, he is not, and there was no error in the court below in sustaining the first ground taken in the demurrer, and dismissing the complainants' bill. When a court transcends the limits prescribed for it by law and assumes to act where it has no jurisdiction, its adjudications will be utterly void and of no effect, either as an estoppel or otherwise: Herman's Law of Estoppel, 45.

Let the judgment of the court below be affirmed.

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John W. Bowie, administrator, plaintiff in error, vs. JAMES

J. FINDLY et al., defendants in error.

1. Where a case is dismissed before trial, the interrogatories taken therein

which have not been read in evidence, are also out of court, unless there is some order or agreement of parties to the contrary. In order to allow the interrogatories to be read in another case upon substantially the same issue and between substantially the same parties, some good reason should be

shown, either that the witness is dead, disqualified or inaccessible. 2. There was sufficient evidence to sustain the verdict. ·

Practice in the Superior Court. Interrogatories. Evidence. New trial. Before Judge RICE. Hall Superior Court. September term, 1875.

Sufficiently reported in the decision.

JOHN L. WIMPY; EMORY SPEER; N. L. HUTCHINS, for plaintiff in error.

Estes & BoyD; J. F. LANGSTON; J. N. DORSEY, for defendants.

Bowie vs. Findly et al.

WARNER, Chief Justice.

This was a bill filed by complainant against the defendants, praying for the rescission and cancellation of a contract for the exchange of certain described lands specified in the complainant's bill, on the ground of alleged misrepresentation and fraud as to the defendants' unincumbered title to the lands which were exchanged for the complainant's lands. On the trial of the case the jury, under the charge of the court, found a verdict in favor of the defendants. A motion was made for a new trial on the ground that the verdict was contrary to the charge of the court, and because the court erred in ruling out the interrogatories of C. B. Wellborn, and because the verdict was contrary to the evidence and the weight of the evidence; which motion for a new trial was overruled, and the complainant excepted.

1. The general rule of practice in our courts is believed to have been, that when a case has been dismissed before any trial has been had, that the entire case is out of court, includ- ing the interrogatories taken in that case which have not been read in evidence, unless there is some order of the court, or agreement of the parties, that the same may be used and read in another case. In order to take a case out of that general rule, and to allow the interrogatories taken in the dismissed case to be read in another case upon substantially the same issue, and between substantially the same parties, some good reason should be at least shown, either that the witness is dead, or disqualified, or is not accessible. If it is sought to use the testimony of the witness taken in the dismissed case on the trial of another case upon substantially the same issue, between substantially the same parties on either of the grounds before stated, reasonable notice should be given by the party seeking to introduce it to the adverse party, of his intention to do so, and of the grounds therefor. In the case now before us it does not appear that the witness is dead, or disqualified, or that he was not as accessible to have been examined in this case as when he was examined in the dismissed case, and no

Lassiter vs. Byrd & Coker et al.

notice was given to the defendants of the intention of the complainant to introduce the evidence of the witness taken in the dismissed case, and for these reasons the interrogatories of the witness taken in the dismissed case were properly ruled out by the court.

2. Whether the verdict was contrary to the charge of the court depends altogether upon the opinion the jury enter tained of the evidence before them. The charge of the court was substantially correct, in view of the facts of the case, and the question of fraud in the exchange of the property was exclusively a question for the jury, under the evidence and charge of the court, and they having found in favor of the defendants there is sufficient evidence in the record to sustain the verdict, and as the presiding judge, before whom the case was tried, was satisfied with it we will not interfere to control his discretion in refusing the motion for a new trial.

Let the judgment of the court below be affirmed.

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SIMON F. LASSITER, sheriff, for use, plaintiff in error,

BYRD & COKER et al., defendants in error.

55 606 59 602 76 745

(Bleckley, Judge, having been of counsel, did not preside in this case.)

55 606 97 412

Whilst the general rule is that after a claim is dismissed and the fi. fi. or

dered to proceed, the property must be re-advertised for sale, yet when the claimant gave the forthcoming bond and sold and appropriated the cotton levied on, and thus put it out of his power to deliver it, such act dispenses with the advertisement and is a breach of his bond,

Bonds. Advertisement. Claim. Sheriff. Before Judge HOPKINS. Fulton Superior Court. October Term, 1875.

Reported in the opinion.

B. H. HILL & Son, by RICHARD H. CLARK, for plaintiff' in error.

HILLYER & BROTHER, for defendants.

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