
    20763.
    BOLTON v. KELLY & SONS.
    Decided May 12, 1931.
    
      J. II. Pelker, for plaintiff in error.
    
      A. M. Kelly, Orrin Roberts, contra.
   Bloodworth, J.

Twice has this case traveled to the Supreme Court. Bolton v. Kelly, 160 Ga. 683 (128 S. E. 901), 169 Ga. 309 (150 S. E. 203). It is now in this court on exceptions to an order refusing to grant a homestead. Certain funds were placed in the hands of J. E. Maleom, clerk of the superior court of Walton county, under an order in the case of A. C. Kelly & Sons v. Union Banking Company, J. W. Bolton, and M. W. Bolton, which provided in part that “J. W. Bolton has no interest in said funds, . . that the cost of this proceeding be first paid from the funds in thé hands of J. E. Maleom, clerk, and the judgment of A. C. Kelly & Sons be paid in full, and the remainder paid to M. W. Bolton. This decree does not adjudicate the question of homestead, M. W. Bolton having until the 16th day of December to file application for homestead. The fund to be held in custodia legis until Dec. 16th, and paid out after that date if application for homestead should not be filed.” This order was amended by adding the following: “It appearing that an application for homestead was filed by the defendant M. W! Bolton prior to December 16, 1928, it is ordered that the funds be held in custodia legis until his rights are decided under said application.” The application for homestead was made to the ordinary and was appealed to the superior court, and by consent the judge passed upon the application without the intervention of a jury. On May 21, 1930, the judge of the superior court passed the following order: “The within application for homestead and exemption having been offered [appealed?] from the court of ordinary by consent of all parties, and after a hearing hereon, it is considered, ordered and adjudged that the application be and is hereby refused, and J. E. Malcom, custodian of the fund, is hereby ordered to pay over the funds in his hands to the attorney of record for the plaintiff, A. C. Kelly & Sons, after the costs are paid as provided in a formal order of this court, set aside pending the hearing hereon.” To this order exceptions were taken by the plaintiff.

The application for homestead was properly refused. McDowell v. McMurria, 107 Ga. 812 (2) (33 S. E. 709, 73 Am. St. R. 155).

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.  