Conyers v. Luther Williams Banking Co.

36 Ga. App. 52 | Ga. Ct. App. | 1926

Lead Opinion

Jenkins, P. J.

Judgment was rendered adversely to the plaintiff in error by the municipal court of Macon on July 14, 1925; she filed a motion for new trial in accordance with the provisions of the act creating that court; the motion was overruled July 22, 1925, and her petition for certiorari was presented to the judge of the superior court and sanctioned by him on August 14, 1925. On August 7, 1925, the act of the General Assembly re-enacting section 26 of the act of 1913 (Ga. L. 1913, p. 252), creating the municipal court of. Macon, was approved by the Governor. This act provides that “from the judgment of said municipal court, city of Macon, refusing to grant a new trial, or making final disposition of any case, in which the principal sum claimed, or the value of the property in controversy, exceeds one hundred dollars, an appeal shall lie to the Court of Appeals of Georgia by writ of error, and a bill of exceptions shall be tendered, certified, and filed, under the same rules as apply to bills of exceptions from the superior courts of this State; provided, however, that the bill of exceptions shall be tendered within ten days from the judgment complained of and served and filed within ten additional days.” The act further provides that the method of review therein provided shall .be exclusive of all other methods provided for by law, including the constitutional writ of certiorari. TJpon the hearing of the petition for certiorari, on motion of counsel for the defendant in error the petition was dismissed, upon the ground that the writ of certiorari from the municipal court of Macon had been abolished by the act of 1925 quoted above. The plaintiff in error carried the case to the Supreme Court, contending in that, court that the trial court erred in dismissing the petition for certiorari, upon the ground that the act of 1925 was unconstitutional and in conflict with various provisions of the constitution set out and enumerated, and that the act of 1925 quoted above had no application to the instant case, for 'the' reason that it had been disposed of prior to the approval of the act, and that to apply the act to this ease would make the law retroactive in its effect. The Supreme Court transferred the case to this court, holding that the constitutionality of the act of 1925 was not involved, for the reason that the constitutional questions were not raised in the court below or passed upon by that court, and such questions, therefore, were not properly before the Supreme Court for decision (162 Ga. 350, 133 S. E. 862), thereby leaving, as the only question for determination by this court, whether or not the act of 1925 applies to the instant case.

Judgment reversed.

Stephens and Bell, JJ., concur.

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Rehearing

ON MOTION FOR REHEARING.

On motion for rehearing the contention is made that the court overlooked the principle of law enunciated by the Supreme .Court in the ease of Memmler v. State, 75 Ga. 576, in which it was held that “if a certiorari was properly dismissed, the judgment will not be reversed, though the court based it upon an erroneous reason.” The argument of counsel for the defendant in error is that the evidence demanded the finding against the claimant, and that the result effected by the dismissal of the, certiorari'should not be disturbed, although the dismissal was planted upon an erroneous reason. Assuming (without deciding) that in a case such as the instant one, where the judgmént of the court below shows on its face that the case was dismissed .for.alleged lack of jurisdiction, with no decision at all by the judge on the question of evidence, the principle of the Memmler case would have application, we are unable to agree with the contention of the defendant in error that the evidence was such as to demand the finding in favor of the plaintiff in fi. fa. and against the claimant, so as to deprive the judge of the superior court of the discretion vested in him by law. It appears from the evidence that the claimant wife had bought certain portions of the property levied upon under the fi. fa. against her husband out of her monthly allowance from her husband’s salary about six years or more prior to the issuance of the fi. fa. against the husband, the date of the fi. fa. being the only indication disclosed by the record as to when the debt against the husband was created. Rehearmg denied.