Kitchens v. State

Court of Appeals of Georgia

Kitchens v. State

61 S.E. 736, 4 Ga. App. 440, 1908 Ga. App. LEXIS 327

Court of Appeals of Georgia·Decided June 18, 1908·No. 1115·Published·Cited by 13 cases

Opinion

Russell, J.

The plaintiff in error filed a .hill of exceptions assigning error on the dismissal of his motion for new trial. Counsel for the defendant in error moved to dismiss the exceptions, upon the ground that the plaintiff in error had voluntarily and without protest paid the fine imposed by the court as an alternative to the term which he had been sentenced to serve in the-chain-gang upon the public works, and had also paid costs in the court below. The ground of the motion to dismiss the writ is properly verified, and the fact that the sentence of the lower court has been complied with is undisputed. As “courts do not settle moot questions^ or deal with fictitious litigation, nor proceed to judgment where.it is shown that the parties have settled their controversy or that the [441] judgment has been satisfied,” the writ of error will be dismissed. Upon this subject see White v. Tifton, 1 Ga. App. 569 (57 S. E. 1038), in which we held that “a defendant who has paid a fine imposed by a police court, with the alternative of imprisonment, can not, after paying such fine, prosecute a writ of error to review the judgment, unless the fine was paid under protest and under duress.” See also Brown v. Atlanta, 123 Ga. 497 (51 S. E. 507). The rule is the same in criminal as in civil cases. It has uniformly been held in this State that the appellate court will not investigate and decide the abstract questions involved in-a case where the substance of the controversy has been withdrawn. Sutcliffe v. McSweeney, 102 Ga. 897 (30 S. E. 268); Henderson v. Hoppe, 103 Ga. 684 (30 S. E. 653); Atlanta & Fla. Ry. Co. v. Blanton, 80 Ga. 563 (6 S. E. 584); Thornton v. Manchester Investment Co., 97 Ga. 342 (22 S. E. 987); Cranston v. Bank of the State of Ga., 97 Ga. 406 (23 S. E. 822); Gallaher v. Schneider, 110 Ga. 322 (35 S. E. 321); Tuells v. Torras, 113 Ga. 691 (39 S. E. 455) ; Owens v. Read Phosphate Co., 115 Ga. 768 (42 S. E. 762); Randolph v. Brunswick Ry. Co., 120 Ga. 969 (48 S. E. 396).

Let the writ of error be dismissed.

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Russell, J.

The plaintiff in error filed a .hill of exceptions assigning error on the dismissal of his motion for new trial. Counsel for the defendant in error moved to dismiss the exceptions, upon the ground that the plaintiff in error had voluntarily and without protest paid the fine imposed by the court as an alternative to the term which he had been sentenced to serve in the-chain-gang upon the public works, and had also paid costs in the court below. The ground of the motion to dismiss the writ is properly verified, and the fact that the sentence of the lower court has been complied with is undisputed. As “courts do not settle moot questions^ or deal with fictitious litigation, nor proceed to judgment where.it is shown that the parties have settled their controversy or that the [441] judgment has been satisfied,” the writ of error will be dismissed. Upon this subject see White v. Tifton, 1 Ga. App. 569 (57 S. E. 1038), in which we held that “a defendant who has paid a fine imposed by a police court, with the alternative of imprisonment, can not, after paying such fine, prosecute a writ of error to review the judgment, unless the fine was paid under protest and under duress.” See also Brown v. Atlanta, 123 Ga. 497 (51 S. E. 507). The rule is the same in criminal as in civil cases. It has uniformly been held in this State that the appellate court will not investigate and decide the abstract questions involved in-a case where the substance of the controversy has been withdrawn. Sutcliffe v. McSweeney, 102 Ga. 897 (30 S. E. 268); Henderson v. Hoppe, 103 Ga. 684 (30 S. E. 653); Atlanta & Fla. Ry. Co. v. Blanton, 80 Ga. 563 (6 S. E. 584); Thornton v. Manchester Investment Co., 97 Ga. 342 (22 S. E. 987); Cranston v. Bank of the State of Ga., 97 Ga. 406 (23 S. E. 822); Gallaher v. Schneider, 110 Ga. 322 (35 S. E. 321); Tuells v. Torras, 113 Ga. 691 (39 S. E. 455) ; Owens v. Read Phosphate Co., 115 Ga. 768 (42 S. E. 762); Randolph v. Brunswick Ry. Co., 120 Ga. 969 (48 S. E. 396).

Let the writ of error be dismissed.

Kitchens v. State, 61 S.E. 736, 4 Ga. App. 440, 1908 Ga. App. LEXIS 327 (Ga. Ct. App. 1908).

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