Chastain v. Baker, 42888

• Decision Date: 13 February 1986
• Docket Number: No. 42888,42888
• Citation: 339 S.E.2d 241,255 Ga. 432
• Parties: CHASTAIN et al. v. BAKER et al.
• Court: Georgia Supreme Court

Page 241

339 S.E.2d 241

255 Ga. 432

CHASTAIN et al. v. BAKER et al.

No. 42888.

Supreme Court of Georgia.

Feb. 13, 1986.

Larry William Russell, McDonough, for Annette S. Chastain, et al.

Everett D. Caldwell, Carolyn S. Weeks, Decatur, for Jacqueline J. Baker, et al.

George E. Glaze, Steven M. Fincher, Claude L. Goza, Jr., Amici Curiae.

MARSHALL, Presiding Justice.

The Court of Appeals has certified the following question to this court: "Georgia Laws 1984, p. 5268, § 1A(b) provides: 'There shall be no appeal to superior court from the Probate Court of Clayton County. Appeals from the Probate Court of Clayton County shall be taken directly to the Court of Appeals or the Supreme Court in the same manner in which appeals are taken to said courts from the superior courts.' However, OCGA § 5-3-2, which was enacted prior to the aforementioned local legislation, provides in pertinent part: 'An appeal shall lie to the superior court from any decision made by the probate court ...' Based upon the foregoing, it is unclear exactly how appeals from decisions of the Probate Court of Clayton County should be pursued. Therefore, the Court of Appeals desires instructions from the Supreme Court upon the following questions, a determination of which is necessary for a decision in this case:

"1) Does the Court of Appeals have jurisdiction of direct appeals from decisions of the Probate Court of Clayton County, as provided in Ga.L.1984, p. 5268, § 1A(b)?

"2) Or, is Ga.L.1984, p. 5268, § 1A(b) invalid by virtue of Ga.Const.1983, Art. 3, § 6, Par. 4(a), which provides in pertinent part that no local or special law shall be enacted in any case for which provision has been made by an existing general law?"

The record before this court contains the suggestion of the death of the alleged incapacitated person, for the appointment of a guardian of whose person and property a petition was filed in this case. Under the Appellate Practice Act, the dismissal of an appeal is mandatory for the three specific instances contained in subsection (b) of OCGA § 5-6-48, Young v. Climatrol Southeast Dist. Corp., 237 Ga. 53, 55, 226 S.E.2d 737 (1976), one of which is "(3) Where the questions presented have become moot." "A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights." (Emphasis supplied.) Black's Law Dict. (Revd. 4th ed.). "Gober v. Colonial Pipeline Co., 228 Ga. 668, 670 (187 SE2d 275) (1972), held: 'This court will upon its own motion dismiss an appeal where it affirmatively appears that ... a decision would be of no benefit to the complaining party. Mooney v. Mooney, 200 Ga. 395 (37 SE2d 195) ... The fact that the appellants might possibly derive some future benefit from a favorable adjudication on an abstract question ... will not require this court to retain and decide the case. Abernathy v. Dorsey, 189 Ga. 72 (5 SE2d 39).' " National Council of Jewish Women v. Cobb County, 247 Ga. 198, 275 S.E.2d 315 (1981) and cits.; Goodyear v. Trust Co. Bank, 247 Ga. 281 (1), 276 S.E.2d 30 (1981).

Of course, a case may be moot, but, because the error is capable of repetition and yet evades review, the appeal will be considered. United Food & Commercial Workers Union v. Amberjack, Ltd., 253 Ga. 438, 321 S.E.2d 736 (1984) and cit.; Caldwell v. Bateman, 252 Ga. 144 (1), 312 S.E.2d 320 (1984) and cit.; Poythress v. Moses, 250 Ga. 452 (1), ...