4 Ga. App. 419 | Ga. Ct. App. | 1908
This case was submitted to the Court of Appeals, and the assignments of error being based on constitutional grounds, all the questions made in the record were certified to the Supreme Court for decision. In that court, after these questions had been argued and were pending there for decision, the plaintiff in error filed in this court a motion to withdraw the writ of error; The solicitor of the city court of Richmond county, where the case originated, and the attorney-general, who, by special designation of the Governor, also appeared for the State, opposed the motion, and urged, that the Court of Appeals was without power to entertain the motion at that stage of the proceeding; also, that, if this court had this power, it would be an abuse of discretion to allow the withdrawal of the writ of error. Acting upon this motion this court rendered the following opinion and order which was transmitted to the Supreme Court: "The majority of the judges are of the opinion that this court has full and exclusive jurisdiction to entertain the motion, notwithstanding the pendency of the certified questions in the Supreme Court. Unanimously we are of the opinion that if we have the right to entertain the motion and in the exercise of that right should grant it, the effect would be to end the case root and branch, and to divest the Supreme Court of all power further to consider or decide the questions which have been certified to it. The withdrawal of a writ of error after argument is a matter resting in the discretion of the court; the power to withdraw does not exist as a matter of right. Green v.
Judge Powell separately expressed his views as follows: "Being of the opinion that this court is without jurisdiction to render any final judgment in a case in which we have certified constitutional questions to the Supreme Court, while these questions are pending there for decision, and that a judgment allowing a withdrawal is a final judgment, I am forced to dissent from the preliminary proposition involved in the foregoing opinion and order. I concur in the remainder of the court's action.”
Thereupon the Supreme Court passed the following opinion and
Since the only act of this court in the nature of a request for a return of the questions, was the suggestion, contained in our order and opinion recited above, that the Supreme Court might return the certified questions if there was no reason existing within the knowledge and discretion of that court why the case should not be withdrawn, their returning of the questions carries with it the necessary implication that no reason exists within the knowledge or discretion of that court why the case should not be withdrawn. As stated in the former opinion of this court, no questions are pending here. Therefore no reason remains for holding the case in court. It is therefore ordered that the motion to withdraw is granted; and the judgment of the court below stands Affirmed.