dissenting.
This case was tried in district court, and on the direct appeal granted by the Kentucky Constitution, was affirmed by the circuit court. Thereafter, a petition for discretionary review was denied by the Court of Appeals. We then granted the petition for discretionary review which was *929filed in this court. By that action the majority of this court agreed to review the decision of the Court of Appeals. The Court of Appeals’ decision, however, was simply the exercise of its discretion not to review the case. Our review of the Court of Appeals’ decision is limited, therefore, to a review of whether the Court of Appeals abused its discretion when it decided not to review the decision of the circuit court. In my opinion we cannot, in our review of the decision of the Court of Appeals, reach the merits of this case because the Court of Appeals has made no decision on the merits.
I believe the limit of our authority is to hold that the Court of Appeals abused its discretion in declining review of this case and to remand the case to the Court of Appeals with direction that it grant the petition for review.
I do not believe the Court of Appeals abused its discretion in this case. The Kentucky Constitution guarantees one appeal to a higher court. The appeal from the district court to the circuit court fulfilled that constitutional guarantee in this case. Further review by an appellate court is discretionary with the court in which the review is sought.
The purpose of this procedure is to allow appellate courts some discretion to keep their docket from becoming overcrowded with matters which have already been reviewed on one appeal and which the court does not deem of such significance as to merit further review. The caseload of the Court of Appeals is extremely heavy, and I do not find fault with its decision to decline review of this case.
GANT, J., joins in this dissent.