No. 3259 | Ga. | Oct 12, 1922
The constitution of the State of Georgia, article 6, sec. 2, par. 6 (Civil Code of 1910, § 6503), provides as follows:
*426 “The Supreme Court shall dispose of every case at the first or second term after such writ of error is brought; and in ease the plaintiff in error shall not be prepared at the first term to prosecute the case — unless prevented by providential cause,— it shall be stricken from the docket, and the judgment below shall stand affirmed.” This provision now applies as well to the Court of Appeals. The question propounded by the Court of Appeals renders it necessary to decide when a writ of eror “is brought,” within the meaning of the foregoing section of the constitution. Whatever may have been deemed the proper construction of that provision of the constitution as to when a writ of error is brought, prior to the ratification of the amendment to the constitution of 1916, we think there can be no question as to its proper construction since that time. In the amendment of 1916 (Georgia Laws ■ 1916, p. 21), the following words are found: “All writs of error in the Supreme Court or the Court of Appeals, when received by its cleric [italics ours] during a .term of the court and before the docket of the term is by order of the court closed, shall be entered thereon; when received at any .other time, shall be entered on the docket of the next term; and they shall stand for hearing at the term for which they are so entered, under such rules as the court may prescribe, until otherwise provided by law.” The General Assembly has not “otherwise provided by law,” as it was, authorized to do by the constitution. Under this provision it would seem that a “ writ of error is brought ” to the Court of Appeals (or to the Supreme Court) when the same is “received by its clerk.” Under the decision in Water Power & Mining Co. v. Arnold, supra, “ a writ of error in a case carried to the Supreme Court which belongs to the class of cases of which the Court of Appeals, under the constitution, has jurisdiction, is not brought to the Court of Appeals until the Supreme Court has determined the question of jurisdiction and has ordered a transfer of the case.” In that case the writ of error was sued out prior to the 1916 amendment to the constitution. The same rule would apply to a writ of error sued out since the amendment. That amendment also provides that “ Any case carried to the Supreme Court or to the Court of Appeals, which belongs to the class of cases of which the other court has jurisdiction, shall, until otherwise provided by law, be transferred to the other court under such*427 rules as the Supreme Court may prescribe, and the cases so transferred shall be heard and determined by the court which has jurisdiction thereof.” Georgia Laws 1916, p. 19. Thus far the General Assembly has not “ otherwise provided by law ” for the transfer of such cases, nor has the Supreme Court prescribed any general, rules applicable thereto. The decision in Water Power & Mining Co. v. Arnold, supra, was a rule applicable to the facts of that case, made in the absence of any statutory provision and in the absence of any general rules prescribed by the Supreme Court. Until the General Assembly has provided otherwise, or until this court has prescribed general rules applicable thereto, the principle ruled in Water Power & Mining Co. v. Arnold is applicable in cases falling within the class mentioned in the certified question, although it may be “possible for the plaintiff in error, knowingly and deliberately and for the purpose of delay only,” to make his bill of exceptions returnable to the wrong reviewing court and thereby procure an enlargement of the time within which his case should be decided.