Opinion
18746.
ARGUED OCTOBER 13, 1954.
DECIDED NOVEMBER 8, 1954.
Equitable petition. Before Judge Pharr. Fulton Superior Court. July 27, 1954.
O. C. Hancock, D. W. Rolader, Vester M. Ownby, C. E. Moore, for plaintiffs in error.
Ernest Bostick, Joseph B. McConnell, contra.
The judgment of the court below overruling the general demurrer to the petition as amended was error.
ARGUED OCTOBER 13, 1954 — DECIDED NOVEMBER 8, 1954.
Gwendolyn Robertson Smith, suing for herself and as next friend for Linda Marlene Robertson, a minor, brought suit against C. W. Bandy, Vester M. Ownby, Mrs. Odie Lee Bandy, Mrs. Gertrude Robertson Pettit, and Arthur Bandy Robertson, seeking an accounting, the appointment of a receiver, damages, and other relief. The defendants filed general and special demurrers to said petition. Thereafter, the plaintiffs twice amended their petition, to which petition as amended the above named defendants renewed their original demurrers and filed additional demurrers. When the demurrers came on to be heard, the court took them under advisement and thereafter entered an order sustaining certain of the demurrers and overruling others.
The petition as amended consists of five counts. After the judge of the court below ruled on the demurrers filed by the defendants, the plaintiffs filed a third amendment, striking counts 2, 3, 4, and 5 in their entirety. The judge of the court below then, within the term, entered a second order which revoked and vacated all of the previous order with reference to the stricken counts. The defendants assign as error here the allowance of this amendment and the judgment revoking and modifying the first order. The defendants also assign as error the overruling of certain general and special demurrers to count one of the petition. All defendants have also excepted to the overruling of certain other demurrers dealing with counts 2, 3, 4, and 5 of the petition, which it is not necessary to set out here because, in the view we take of this case, they will not be considered in this court.
1. It is first contended that it was error to allow the amendment to the petition in the instant case, which struck counts 2, 3, 4, and 5, and that it was error to enter the order revoking and vacating that portion of the previous order dealing with said counts. The contention is that, since demurrers had been sustained to certain of these counts, there had been a final judgment, and that the plaintiffs could not then amend and the judge could not then revoke and vacate his judgment. It appears from the record that no objection or demurrer to the said amendment was filed in the court below. This objection, being raised for the first time in this court, will not be considered.
It is next contended that the trial judge had no right to revoke and vacate a portion of his former judgment. There is no merit in this contention. A trial judge has the power during the term of court at which a judgment is rendered to revise, revoke, or vacate said judgment, even on his own motion, for the purpose of promoting justice and in the exercise of a sound discretion. See Tyler v. Eubanks, 207 Ga. 46 ( 60 S.E.2d 130). The order in the instant case was within the term of court at which the previous judgment was rendered, and the judge had a right to revoke and vacate the portions of the judgment, which he did. It follows, therefore, that there was no error in the order revoking and vacating portions of the former order.
2. It is next contended that the general demurrers to count one should have been sustained. The gist of the present action is that the remaindermen are seeking to remove the administration of a decedent's estate from the court of ordinary to a court of equity. It is also sought to remove the executor, appoint a receiver, forfeit the life estates, have an accounting, and other relief. The grounds which it is alleged entitle them to this relief are that the executor fraudulently induced the ordinary to approve certain sales of real estate at private sales, which private sales were not authorized under the will, that the property was sold for less than its true value, that it was not necessary to sell said property, and that the proceeds were misapplied.
All the relief to which the petitioners appear from the allegations of the petition to be entitled can be secured in the court of ordinary. The petitioners admit that they can not now set aside the sales which it is alleged were illegally made. They seek, however, to recover damages against the executor. However, they allege that they are entitled as damages to the difference between the selling price and the present value of the land in question, which value is alleged. Under no circumstances, either in law or equity, would the petitioners be entitled to this sum as damages. It may be that with proper allegations and proof the plaintiffs can recover damages against the executor if he has wilfully or negligently injured the estate. However, they can get all the relief they require in an accounting before the ordinary.
It is also sought to set aside the judgment of the court of ordinary for fraud. There are no allegations to support the allegation that these judgments were procured by fraud. There is simply no fraud alleged in the petition.
There is no merit in the contention that a determination of the questions involved requires a construction of the will of the deceased, and that, therefore, the administration of the estate should be removed from the ordinary. The contention is that the plaintiffs in the court below allege that the will of the deceased did not give the executor the right to sell at private sale, and the defendants contend that it did. We do not agree. There is no prayer for the construction of the will and none is needed. Equity will not assume jurisdiction of an estate and thereby obstruct the orderly procedure for the administration of an estate under the guise of construing the will. See Bowen v. Bowen, 200 Ga. 572 ( 37 S.E.2d 797); Smith v. Pitchford, 189 Ga. 307 ( 5 S.E.2d 766).
It further appears that there are no allegations in the petition which show that there is any danger of loss or irreparable injury to the estate. It is not alleged that the executor is insolvent or unable to compensate the petitioners for any negligence or misconduct of which he may be found guilty in an accounting before the ordinary. Nor are there any allegations which show that the present life tenants are guilty of any acts of misconduct toward the estate which would authorize a forfeiture of their interests.
3. The special demurrers, not having been argued in this court, will be considered abandoned.
4. The rulings herein made dispose of the case under consideration, and no ruling will be made on other questions presented by the record.
5. For reasons stated in division 2 of this opinion, the judgment of the court below must be
Reversed. All the Justices concur.