Wausau Insurance Company v. King

Full title: WAUSAU INSURANCE COMPANY v. KING

Court: Court of Appeals of Georgia

Date published: Apr 14, 1989

191 Ga. App. 329 (Ga. Ct. App. 1989)

381 S.E.2d 574

Opinion

A89A0086.

DECIDED APRIL 14, 1989.

Jurisdiction. Cobb Probate Court. Before Judge Dodd.

Swift, Currie, McGhee Hiers, James T. McDonald, Jr., Joseph A. Munger, for appellant.

Roberta E. Murphy, Stephen E. O'Day, Brooks Brock, D. Glenn Brock, for appellee.

CARLEY, Chief Judge.

In the Probate Court of Cobb County, appellant filed a notice of its disputed claim against the estate of Cynthia V. King. The probate court held that it was without subject matter jurisdiction over disputed claims against an estate, as "[s]uch jurisdiction is of a statutory nature and was not conferred on [it] by the 1987 additional jurisdiction contained in OCGA § 15-9-127." Appellant appealed directly to this court. This court has jurisdiction pursuant to OCGA § 15-9-123, the case having been filed in the probate court after July 1, 1986. See Walker v. Yarus, 258 Ga. 346 ( 369 S.E.2d 32) (1988).

1. Appellant enumerates as error the probate court's ruling that it lacked subject matter jurisdiction to decide the disputed claim. Appellant urges that such jurisdiction is conferred by OCGA §§ 15-9-127 and 9-4-4, whereby certain probate courts are granted concurrent jurisdiction with superior courts to hear proceedings for declaratory judgments involving fiduciaries.

Notwithstanding its reliance upon OCGA §§ 15-9-127 and 9-4-4, appellant never filed a petition for declaratory judgment in the probate court. The only pleading that appellant ever filed in the probate court was its notice of the disputed claim. In a proceeding between a representative of the estate and an alleged creditor, the probate court has no jurisdiction to decide an issue as to an alleged indebtedness. Gettle, Fraser c. v. Marchant, 144 Ga. App. 71-72 ( 240 S.E.2d 590) (1977); Fulford v. Sweat Gaskins, 65 Ga. App. 521, 522 ( 16 S.E.2d 102) (1941). If appellant wished to invoke the probate court's jurisdiction to render a declaratory judgment, it should have filed a petition seeking such a declaratory judgment. It did not do so. The probate court correctly determined that it lacked subject matter jurisdiction under the pleadings that were then before it.

2. In light of our holding in Division 1, the remaining enumerations of error need not be addressed.

Judgment affirmed. McMurray, P. J., and Beasley, J., concur.

DECIDED APRIL 14, 1989.