Since the equitable features of the case in the trial court are not in issue in the appeals, and there is no other question of which this court has jurisdiction, jurisdiction is in the Court of Appeals and not in this court. See: Pearson v. Stamey, 172 Ga. 282 ( 157 S.E. 468); Rogers v. Miller Peanut Co., 199 Ga. 835 ( 35 S.E.2d 469); Rumph v. Rister, 211 Ga. 312 (4) ( 85 S.E.2d 768). Appeals returned to the Court of Appeals. All the Justices concur.
4. The equity feature which the present case originally contained having been abandoned, or eliminated before the judgment dismissing the petition to take down the tender was rendered, the Court of Appeals and not this court has jurisdiction. Code (Ann.) ยงยง 2-3704, 2-3708; Holloway v. Dorsey, 198 Ga. 266 ( 31 S.E.2d 349); Martin v. Home Owners Loan Corporation, 198 Ga. 288 ( 31 S.E.2d 407); Rogers v. Miller Peanut Co., 199 Ga. 835 ( 35 S.E.2d 469); Toler v. Goodin, 74 Ga. App. 468 (1) ( 40 S.E.2d 214). Transferred to the Court of Appeals. All the Justices concur.
Properly construed, the petition seeks to make an action at law . . and under the rulings of this court in Burress v. Montgomery, 148 Ga. 548 ( 97 S.E. 538), the Court of Appeals has jurisdiction." See also Rogers v. Miller Peanut Co., 199 Ga. 835 ( 35 S.E.2d 469). Accordingly, the case is Transferred to the Court of Appeals. All the Justices concur, except Bell, J., absent on account of illness.
However, the posing of an equitable defense in response to a motion for summary judgment in a case in this court's jurisdiction, clearly does not make this a case in equity. See Georgia Constitution, Art. VI, Sec. VI, Par. III; Rogers v. Miller peanut Co., 199 Ga. 835 ( 35 S.E.2d 469); Equitable c. Society v. Bischoff, 179 Ga. 255 ( 175 S.E. 560). 2.
There remains under the record no issue of an equitable nature. Whether the court erred in disallowing the motion in question, is purely a legal question without any equitable principle whatsoever involved. See Martin v. Home Owners Loan Corp., 198 Ga. 288 ( 31 S.E.2d 407); Rogers v. Miller Peanut Co., 199 Ga. 835 ( 35 S.E.2d 469). These very recent decisions conclude this contention against the plaintiff. 2. (a) The law of our State contemplates that, upon the death of a resident, the estate of such deceased shall be administered through the court of ordinary of the county of the residence of the deceased at the time of his death.
FELTON, J. This case was transferred to this court by the Supreme Court. Rogers v. Miller Peanut Co., 199 Ga. 835 ( 35 S.E.2d, 469). To the statement of the issues by the Supreme Court it is necessary only to add here, for the purposes of this decision, that the defendant's cross-petition claimed damages of the plaintiff for breach of the contract set forth in the petition.