City of Jackson v. Hardy

Gilbert, Justice. M. 0. Hardy brought an equitable action against the City of Jackson. A demurrer was overruled, and the defendant excepted. After the hearing of evidence, judgment was rendered in favor of the plaintiff, and the defendant excepted. After the bill of exceptions had been signed and certified by the presiding judge, and after this court had acquired jurisdiction of the case, the plaintiff dismissed his case in the lower court without the knowledge or consent of the defendant. Thereupon as defendant in error he filed a petition in this court, reciting that the original cause had been dismissed in the lower court, and that the question before this court had become moot, and praying that the proceedings here be dismissed. The plaintiff in error answered that it had had no notice of any motion to dismiss 'the case in the lower court, and that, having appealed the same to this court, no judgment or action in the lower court subsequent to the filing of the ease in this court could be considered here, and that the defendant in error could not escape and evade payment of costs by such a proceeding, and moved this court not to consider the motion to dismiss. Held: 1. 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). 2. The petition to this court, properly construed, is a motion by the defendant in error to dismiss the bill of exceptions of the plaintiff in error; and 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. 3. The matter of taxing costs accruing in the superior court is within the jurisdiction of that court, and will not be decided by this court except upon review. A. & W. P. R. Co. v. Golightly, supra. Writ of error dismissed. All the Justices concur.