Smith v. Jeffries , 188 Ga. 649 ( 1939 )

Bell, Justice.

This case arose by a petition for the writ of mandamus, to require the ordinary of Fulton County “to hold a general election for judge of the civil court of Fulton County on the date of the general election fixed in the act of 1937 [Ga. L. 1937, p. 712],” in which the plaintiff desired to run as a candidate for such office. After notice and hearing, the court, on May 12, 1939, refused to issue a mandamus nisi and declined to sanction the petition. The petitioner assigned error on this ruling, and the writ of error was filed in this court on May 15, 1939. The case was assigned for argument during the week of June 19, 1939. On June 15, 1939, the defendant filed a motion to dismiss the writ of error, on the ground that the question involved had become moot, in that “the general election provided by law to be held on Tuesday after the first Monday in June beginning in the year 1937, and biannually thereafter (Acts 1937, page 712), was held in Fulton County on June 6, 1939; that in said election no ballot was prepared and no election held for judge of the civil' court of Fulton County.” -The motion to dismiss was duly served'in accordance with the rules of this court. No response, as such, was filed by the plaintiff, but in a -supplemental brief filed in his behalf it was stated: “If just the question of election was all that is involved in the matter at hand, then this argument [that the question involved has become moot] might -be -good; but we aré not challenging the question of this particular' election, but the question as to whether or not the elections generally are to be had on this date.”

The only relief sought was that the ordinary be required to hold a general election for judge of the civil court of Fulton County on the date of the general election prescribed by the act of February 24, 1937, supra. The statements contained in_the motion to dismiss, that the general election required by the act of 1937 was held in Fulton County on June 6, 1939, and that in said election no ballot was prepared, and no election was held for judge of the civil court of Fulton County, not having been denied by the plaintiff, will be taken as true, in passing upon the motion. Such being the facts, the motion must be sustained. "“This court will in no case undertake to pass upon questions presented by a bill of exceptions, when it affirmatively appears that, even if the judgment of the court below were reversed, the plaintiff in error would derive no benefit from the adjudication.” Davis v. Jasper, 119 Ga. 57 (45 S. E. 724); Arnold v. Arnold, 180 Ga. 560 (179 S. E. 715). See also Tabor v. Hipp, 136 Ga. 123 (70 S. E. 886, Ann. Cas. 1912C, 246), where the same rule was applied in a mandamus case.

Writ of ewor dismissed,.

All the Justices concur.