Opinion
31531.
DECIDED APRIL 10, 1947.
Certiorari; from Fulton Superior Court — Judge Moore. December 13, 1946.
O. C. Hancock, C. E. Moore, for plaintiff in error.
Powell, Goldstein, Frazer Murphy, James K. Rankin, contra.
The motion of the defendant in error to assess damages is denied, and the appeal is dismissed.
DECIDED APRIL 10, 1947.
This was a petition for certiorari brought by Ben J. Diamond against D. Ellis Williams in the Superior Court of Fulton County. The petitioner complained of a judgment rendered against him by the Civil Court of Fulton County in a dispossessory-warrant proceeding, and he sought by certiorari to have the same reviewed and the alleged errors considered and corrected. The judgment of the superior court overruling and denying the application for certiorari is excepted to in this court.
The plaintiff in error has requested in writing that the case be withdrawn from this court without prejudice to him. This request is objected to by the defendant in error who points out that he has asked the court to affirm the trial court and also to assess damages against the plaintiff in error upon the ground that the cause was taken up for delay only.
"Ten percent damages may be awarded by the appellate court upon any judgment for a sum certain, which has been affirmed, when in their opinion, the cause was taken up for delay only, and it shall be so entered in the remittitur." Code, § 6-1801. Under the well-known rule that damages will not be awarded by this court under this section unless the court is fully satisfied that the case was brought up for delay only ( Roach v. Roach, 68 Ga. App. 10 (2), 21 S.E.2d 859, Hankin v. Deaton, 68 Ga. App. 113 (2), 22 S.E.2d 341, Maryland Casualty Co. v. Tow, 71 Ga. App. 178 (5), 30 S.E.2d 433, Friedman v. French, 71 Ga. App. 556, 31 S.E.2d 428, Walden v. Barwick, 72 Ga. App. 545 (3), 34 S.E.2d 552, United States Fidelity c. Co. v. Garber, 72 Ga. App. 888 (6), 35 S.E.2d 371, and First Joint Stock Land Bank v. Sasser 185 Ga. 417, 195 S.E. 143), we do not feel disposed to grant the motion of the defendant in error. After a careful examination and consideration of the record we can not say that we are satisfied that the appeal was for delay only. The motion to assess damages is therefore denied.
Having disposed of the motion of the defendant in error, the request of the plaintiff in error that the case be withdrawn is granted, and the writ of error is
Dismissed. Sutton, P. J., and Felton, J., concur.