It is true that the holdings and decisions of the Court of Appeals are governed by those of the Supreme Court and are subject to its general superintendence and control.
Nevertheless, final appellate jurisdiction is reposed in the Court of Appeals — not in the Supreme Court — as regards the instant appeal. Code 1940, Title 13, Section 86; Constitution, Section 140. And the Supreme Court, by its last and only authoritative decision in the case, merely approved the judgment and decision of the Court of Appeals which should be accorded no more legal effect than a denial of certiorari in the first instance, the result of which would have been a renunciation here of jurisdiction in the cause.
The final judgment of the Supreme Court was an eradication of its initial erroneous decision predicated on the unjustifiable awarding of certiorari and, though characterized as an affirmance of the judgment of the Court of Appeals, it was in essence, finally, no more than a refusal to exercise its constitutional prerogative of supervisory control over the proceedings of the Court of Appeals. The last judgment of this court was but an affirmance of the pronouncements of the applicable law as declared by the Court of Appeals and could have no more efficacy to supplant the jurisdiction of that final appellate court than an initial denial of the writ. In no sense could it be conceived that, by this limited method of review, first arbitrarily exercised by us under an erroneous conception of the applicable law, jurisdiction of the other final appellate court had been thereby irrevocably withdrawn, in a cause where final jurisdiction was by statute and constitution therein lodged.
Otherwise, the intercalation in the present Constitution, 1901 (absent in the corresponding section of the Constitution of 1875, art. 6, § 2), providing, inter alia, that the Supreme Court shall have appellate jurisdiction "except where jurisdiction over appeals is vested in some inferior court, and made final" (here the Court of Appeals), would be a meaningless excrescense and without legal force.
It is not doubted that ultimate judicial power is vested in the Supreme Court and to this end will be exercised to compel action by the Court of Appeals within its jurisdiction and to preserve uniformity of decisions of the two courts of last resort, but this supervisory power will be employed with great caution (Ex parte Louisville Nashville R. R. Company,176 Ala. 631, 58 So. 315) and certainly not now by granting a writ prohibiting the exercise of its jurisdiction in this case when its decision and judgment was correct and not subject to modification and where correct action here in the first instance would have been to approve its proceedings and to deny the writ of certiorari without even temporarily suspending jurisdiction of that Court by an award of the writ.
It is likewise unsound to construe the case of Minto v. State, 9 Ala. App. 95, 64 So. 369; Ex parte Minto, 187 Ala. 671,65 So. 516, as authority for holding that jurisdiction of the Court of Appeals ended in the cause with the end of the term of court at which the judgment was rendered. This for the reason that the certificate of affirmance was withdrawn, on application for rehearing duly made in that court, and the proceedings remained in fieri during the successive steps taken in the cause to the present time. 34 C.J. 213, § 437; 14 C.J.S., Certiorari, § 108, p. 245.
On the basis of these considerations I cannot accord with the majority decision and respectfully dissent.
LIVINGSTON, J., concurs in this dissent. *Page 150