184 Ga. 692 | Ga. | 1937
An execution issued by the State superintendent of banks’ was levied upon certain realty, and a claim interposed. In aid of the claim an equitable amendment wa's filed, in which, however, no affirmative relief was prayed. On the trial the court directed a verdict in favor of the claimants, and thereafter, on motion of the plaintiff in fi. fa., a new trial was granted. The claimant excepted and assigned error on that ruling. After the bill of exceptions was certified, the attorneys for the plaintiff in fi. fa. dismissed the levy, which dismissal was approved by the judge of the superior court. Thereafter the defendant in error (plaintiff in fi. fa.) filed in this court a motion to dismiss the writ' of error, on the ground that the questions therein made were moot. Attached to the motion was a certified copy of the entry of levy, with order of dismissal, approved by the trial judge. The plaintiffs in error, in their response to the motion to dismiss, admit the allegations of fact contained in the motion as to the dismissal of the' levy. Held:
1. “The plaintiff in any action, in any court, may-dismiss his action either in vacation or term time, if he shall not thereby prejudice any right of the defendant.” Code of 1933, § 3-510.
2. “The plaintiff in fi. fa. is the plaintiff in the ordinary claim case.” Aultman v. Aultman, 23 Ga. 211.
3. “The issues involved are moot, because the case is no longer pending in the superior court. Mott v. Hill, 7 Ga. 79; A. & W. P. R. Co. v. Golightly, 148 Ga. 582 (97 S. E. 516); Stark v. Hamilton, 149 Ga. 44 (99 S. E. 40, 5 A. L. R. 1041); Marshall v. Johnson, 149 Ga. 608 (2) (101 S. E. 577); Johnson v. Quigg, 164 Ga. 391 (138 S. E. 774); O’Neal v. Hood Coach Lines, 179 Ga. 72 (175 S. E. 15).” City of Jackson v. Hardy, 180 Ga. 694 (180 S. E. 610).
4. This court will not decide a case solely to determine the matter of costs advanced in this court. Christopher v. Crovatt, 147 Ga. 632 (95 S. E. 233), and cit.; A. & W. P. R. Co. v. Golightly, supra; Deaton v. Day, 148 Ga. 698 (2) (98 S. E. 267), and cit.; City of Jackson v. Hardy, supra.
Writ of error dismissed.