1. "Where it was sought to have the court of ordinary revoke and set aside the probate of a will in solemn form, on the petition of one who had been served and was a party to the proceedings to admit the will to probate, such application . . ." was timely "made within three years from the rendering of the judgment sought to be vacated." Speer v. Speer, 74 Ga. 179 (1).
2. The appeal to the superior court from the final judgment of the court of ordinary denying the caveatrix' motion to set aside the judgment of probate, was a de novo investigation, in which both parties were entitled to be heard on the whole merits of the case. Code Ann. 6-501 (Ga. L. 1972, pp. 638, 642). The superior court judge should have submitted to a jury the issues of fact raised by the motions for summary judgment of the propounder and the caveatrix by hearing evidence in a de novo investigation as required by Code Ann. 6-501; therefore, he erred in remanding the case to the court of ordinary for a determination of the case on the merits. See Touchton v. Stewart, 222 Ga. 455 (150 SE2d 643)
The judgment remanding the case to the court of ordinary, is reversed with direction that the parties be given a de novo hearing and ruling by the superior court on the whole merits of the case.
James W. Hurt, for appellee.