Pittman v. Ingram , 184 Ga. 255 ( 1937 )

ON MOTION BOR REHEARING.

Bell, Justice,

concurring. The writer agrees to what has been said in the prevailing opinion, and does not desire to say more, except in response to the suggestion that the decision should go further and define the extent of the tenure under the clause "until his successor is qualified” and determine when or at what election a judge of the Cherokee Circuit may be chosen by the electorate. Apparently the movant and the respondent each would invoke such additional adjudication. The suggestion has been declined, and this statement relates solely to that conclusion. The writer would not hesitate to go further in this case, if it were proper to do so under the record, and while he is speaking for himself only, it may be safely assumed that no other is of a different attitude. Naturally it would be desirable to the parties in this case, as well as to the public, to have a decision at this time that would quiet the title to this office and avoid further controversy. This court, however, can only decide such questions as are presented by the record in a case before it and must confine itself to the consideration of errors alleged to have been committed by the court below in such case. Dunaway v. Gore, 164 Ga. 219, 230 (138 S. E. 213). The only question involved.by the instant record was whether the death of the judge-elect before his qualification created a vacancy authorizing an appointment by the Governor, and a decision upon other questions would be obiter and not binding. Moreover, such a decision would be in effect a declaratory judgment which this court has no jurisdiction to render. Southern Railway Co. v. State, 116 Ga. 276 (2) (42 S. E. 508). The issue in the present case is not based upon any election, and a decision should and could not be made at this time in regard to a future election. Furthermore, the parties to this case are Pittman and Ingram, while if a new case should ever arise the parties may be different. If and when an election is held, any claim based thereon would make an entirely new and distinct case, and the parties thereto, whoever they may be, will be entitled to a decision upon the facts as then presented. "Under every principle of justice, as well as jurisdiction, such a case ought not to be prejudged, and the more especially is this true since the parties may be different. For the reasons stated, the court is right in declining to enlarge its decision so as to cover the questions referred to in this statement.