State Ex Rel. Landis v. Atkinson

Per Curiam. — By an equally divided court, on July 6th, 1931, an order was entered in this cause that the relator’s motion for a writ of prohibition be denied in so far as the Court’s jurisdiction is involved in the matter of a Receiver for the City Trust Company. In connection with that order, three members of this Court expressed themselves as being of the opinion that the original answer of the Circuit Judge was insufficient to preclude the award of a writ of prohibition, while three members of the Court were of the contrary opinion. Subsequent to this order, the relator asked that the cause be re-opened and re-instated on the docket with reference to the case of the City Trust Company. This was granted, and with the permission of the Court, a replication was filed to the answer of the Circuit Judge. This replication in part denies and in part confesses and attempts to avoid the facts set up in the answer of the Circuit Judge. It does not appear that the gist of the contentions raised and argued by means of this replication were ever presented to, or offered to be presented to and ruled on by the Circuit Judge. It is therefore ordered by the Court that the replication to the answer of the respondents be stricken and that the *1093 order reinstating this cause on the docket of this Court be vacated. Buford, C.J., and Whitfield, Ellis, Terrell, Brown and Davis, J.J., concur.