
    Alexis Bragg et al., plaintiff in error, vs. W. H. Tibbs, defendant in error.
    Upon the call of a case upon the docket, the counsel for the plaintiff stated to the Court that he had a motion prepared to transfer the case to the United States Court, and the Court refused to hear the motion, giving precedence to a motion to dismiss the case upon the ground of non-payment of taxes under the Act of 1870. This was error.
    Removal to United States Court. Relief Act of 1870. Tax. Before Judge Parrott. Whitfield Superior Court. April Term, 1871.
    . This suit, upon a note made in 1860, was dismissed because no affidavit as to the payment of taxes was filed, as required by the Relief Act of 1870, though plaintiff insisted upon removing it to the United States District Court pursuant to the Act of Congress, because plaintiffs were non-residents, etc.
    W. II. Moore, for plaintiff in error.
    McCutohen & Shumate ; D. A. Walker, for defendant, cited 41 Ga. R., 417.
   Lochrane, Chief Justice.

The plaintiff in error brought suit against W. H. Tibbs in Whitfield Superior Court, and when the.case was called the plaintiff, by his counsel, informed the Court that he had an application in regular form for the removal of the case to the United States Court. The Court inquired if he had filed an affidavit of the payment of taxes, which was answered by plaintiff that he had not, but had filed the proper affidavit required by Act of Congress to transfer the case. Upon which the Court dismissed the case.

We think the Court erred in this decision. The institution of the suit constituted a case in the Court, to which a motion of transfer under the Act of Congress applied, and it was the duty of the Court to have heard that motion and decide it in precedence to the motion to dismiss, for reasons too obvious to invoke any discussion.

Judgment reversed.  