concurring specially.
Were it not for Mathis v. State, 231 Ga. 401 (197 SE2d 73), after the juvenile court took jurisdiction it would have to retain it unless the statute was followed in transferring it to the superior court. As I understand the constitutional amendment, it simply gave the juvenile court and the superior court concurrent jurisdiction over juvenile felonies, whereas before that the superior court had had exclusive felony jurisdiction. It also (by saying "as provided by law”) gave the legislature the authority to say under what terms such transfer could be made. The legislature did this under Code Ann. § 24A-2501.
The general rule is that the court first taking jurisdiction of a question, where two courts have concurrent jurisdiction, will retain it. Hardeman & Sparks v. Battersby, 53 Ga. 36; McCord v. Walton, 192 Ga. 279 (14 SE2d 723). Applying the rule, it was held in Breeden v. Breeden, 202 Ga. 740 (44 SE2d 667), that where the superior court had obtained custody jurisdiction in a divorce action the plaintiff could not dismiss and sue out a habeas corpus in the court of ordinary.
In Carstarphen v. Dayton, 222 Ga. 138 (149 SE2d *105103), the juvenile court took first jurisdiction of a custody matter. A habeas corpus was brought in the superior court thereafter, by one not a party to the juvenile court case. It was held that "since the juvenile court first assumed jurisdiction of the subject matter and expressly retained jurisdiction we agree that the superior court should not determine the issues.” Superior court action ordered transferred to juvenile court.
I conclude from all this that the juvenile court, which first took jurisdiction (the juvenile court and the superior court having concurrent jurisdiction over the juvenile accused of a felony) should retain it unless the transfer is pursuant to the hearing required by Code § 24A-2501.
But as I read Mathis, a contrary decision was arrived at, where the Supreme Court simply said the indictment was good, without deciding whether the juvenile court which originally took jurisdiction held a proper hearing or not. I think we are bound by Mathis. Therefore, the pending indictment renders this case moot and it should be dismissed.
I am authorized to state that Judge Evans joins in this special concurrence.