51 Ga. App. 333 | Ga. Ct. App. | 1935
Lead Opinion
In the municipal court of Atlanta the maker and the indorser on promissory notes were sued, and on February 13, 1933, the plaintiff obtained a judgment for $491. On March 3, 1933, the indorser’s motion for a new trial was denied. On- March 13, 1933 (subsequent to the act approved March 10, 1933, Ga. L. 1933, pp. 290, 298, abolishing the right of certiorari from the municipal court to the superior court), the defendant appealed to the appellate division of the municipal court, which on June 3, 1933, affirmed the judgment. On June 28, 1933, the superior court of Fulton county sanctioned the defendant’s petition for certiorari, and on November 28, 1933, entered a judgment overruling the certiorari and- denying a new trial. From this judgment writ of error was brought to the Supreme Court, which transferred the case to this court. Held: This case is controlled by the ruling of this court in Cable Piano Co. v. Williamson, 49 Ga. App. 529 (176 S. E. 103), where it was held that section 42-A of the act of March 10, 1933, explicitly abolished the right of certiorari from the municipal court of Atlanta. The action of the superior, court in overruling the
Judgment affirmed.
Rehearing
ON MOTION ROR REHEARING.
Since this case was decided the Supreme Court in Aspironal Laboratories Inc. v. Mallinckrodt Chemical Works, 180 Ga. 544 (179 S. E. 709), adjudicated that the provisions of section 42-A of the act of 1933 (Ga. L. 1933, p. 295), abolishing the writ of certiorari for review of cases from the municipal court of Atlanta by the superior court, was unconstitutional and therefore void. We have given renewed consideration to this case, in order to determine whether our original decision should stand. It appears, however, that inasmuch as no constitutional question was raised, passed upon, or considered by the superior court, the rule adopted and uniformly followed by the appellate courts, as recently adjudicated in Hutchings v. Roquemore, 164 Ga. 637, cited in our original syllabus opinion (supra), should be followed. In that case the Supreme Court held: “The Supreme Court will not un
Motion for rehearing denied.