Opinion
16625.
MAY 12, 1949.
The Court of Appeals (in case No. 32347) certified to this court the following questions:
Smith, Kilpatrick, Cody, Rogers McClatchey, and Sidney Haskins, for plaintiff.
Alfredda S. Wilkerson and William J. Wilkerson, for defendant.
The sole ruling of the trial judge which it is sought by the bill of exceptions to have reviewed is a judgment dismissing, on oral motion of the defendant, a petition seeking recovery in an action at law against a surety on a guardian's bond. The certified question simply enumerates material allegations of the petition and requests the Supreme Court to answer whether or not the petition was subject to dismissal on the oral motion. The Constitution confers exclusive jurisdiction upon the Court of Appeals to review such cases, and not upon the Supreme Court except in cases where the Judges of the Court of Appeals are equally divided. Article 6, section 2, paragraph 4, and article 6, section 2, paragraph 8 of the Constitution (Code, Ann. Supp., §§ 2-3704, 2-3708). An answer by the Supreme Court of the question certified would constitute a decision of the main case by this court instead of the Court of Appeals. This cannot, under the Constitution, be done. Johnston v. Travelers Insurance Co., 183 Ga. 229 ( 188 S.E. 27); Liverpool London Globe Ins. Co. v. Stuart, 193 Ga. 437 ( 18 S.E.2d 681); Butler v. State, 194 Ga. 426 ( 21 S.E.2d 846); City of Trenton v. Dade County, 202 Ga. 190 ( 42 S.E.2d 438). For the reasons stated we must respectfully decline to answer the question certified.
Question not answered. All the Justices concur.
No. 16625. MAY 12, 1949.
"1. Where a person residing in this State is appointed, qualifies, and gives bond as the guardian of the person and property of a minor ward, in a county in this State, and thereafter moves beyond the jurisdiction of the court and is residing in Miami, Florida, is an action by the ordinary of the county in which the guardian was appointed, for the use of the minor ward, maintainable against the surety alone on the guardian's bond, under the provisions of the Code, § 49-237, where the petition alleges the foregoing facts and that the guardian received money belonging to the ward in the amount of $667.66, `which it is alleged on information and belief has been wasted by the guardian for his own purposes contrary to law,' in the absence of any allegations of demand upon the guardian for the payment of the money, and his failure to comply therewith, and where there are no prayers for the removal of the guardian or for the revocation of his letters of guardianship, and where there are no allegations that the guardian has been removed or that the guardianship has otherwise been terminated?
"2. Was a petition as set forth above subject to dismissal on an oral motion in the nature of a general demurrer on the ground that it stated no cause of action against the defendant?"