47 Ga. App. 466 | Ga. Ct. App. | 1933
On December 17, 1926, an assessment was made against Mrs. S. R. Walton as a stockholder in the Bank of Morgan County, the bank being then in liquidation — its assets having been taken over by T. R. Bennett, superintendent of banks. On January 17, 1927, a stock-assessment fi. fa. was issued against Mrs. Walton by A. B. Mobley, superintendent of banks, who had succeeded T. R. Bennett. On March 24, 1928, the fi. fa. was levied by the sheriff of Morgan county on described real estate of Mrs. Walton, and on April 5, 1932, Mrs. Walton filed the following affidavit of illegality (formal parts omitted) : "1, Said execution
On June 6, 1932, when the case was tried in the superior court, E. E. Gormley had succeeded A. B. Mobley as superintendent of banks. Issue being joined, the plaintiff in fi. fa. moved to dismiss the affidavit of illegality on the general ground that it set up no defense as a matter of law to the fi. fa., and upon the following special grounds: “ 1st, that paragraph 1 of the affidavit was no more than a general statement that said fi. fa. was proceeding illegally and was insufficient as a matter of law to raise any defense; and 2d, that paragraph 2, wherein it was alleged that section 20, article 7 of the banking act of 1919 was unconstitutional because violative of article 1, section 1, paragraph 3 of the constitution of this State, known as the due-process-of-law clause, set up no defense to the stock-assessment fi. fa., because the section of the banking act alleged to be unconstitutional was not as a matter of law unconstitutional, but was as a matter of law constitutional.” The defendant in fi. fa. thereupon offered an amendment to her affidavit of illegality, and the amendment was allowed, over the objection of the plaintiff in fi. fa. “that the original affidavit of illegality set up no defense to the stock-assessment fi. fa-, and contained nothing to amend by.” The amendment allowed, amending paragraph 2 of the original affidavit (formal parts omitted), was as follows: “The execution in this case purports to be issued upon an assessment or judgment of assessment, when as a matter of fact defendant says on oath, to the best of her knowledge and belief, said execution is [not?] based on an assessment or judgment of assessment at all, because the superintendent of banks made no assessment or judgment of assessment against the stockholders of the Morgan County Bank or against the defendant. Defendant did not know of this ground of illegality, and could not discover it when she filed her original affidavit of illegality.” The plaintiff in fi. fa. excepted to the judgment allowing the amendment; and renewed its motion to
It is well settled, under numerous decisions of the Supreme Court, that ordinarily, where a constitutional question is properly raised in a case, that court, and not this court, has jurisdiction of the ease. However, it has also been repeatedly ruled by the Supreme Court that where the constitutional question involves merely the application by the Court of Appeals of the construction of some part of the State or Federal constitution already given by the Supreme Court, this court, and not the Supreme Court,-has jurisdiction of the case. Subsequent to the constitutional amendment of 1916, the Supreme Court, in passing on the jurisdiction of the Court of Appeals, made the following ruling: “The words ‘'construction of the constitution/ etc., as here employed [in the constitutional amendment] contemplate construction where the meaning of some provision of the constitution is directly in question, and is doubtful by force of its own terms or under the decisions of the Supreme Court of the United States or of the Supreme Court of Georgia; and the provision of the constitution in which they are employed is not to be construed as denying to the Court of Appeals jurisdiction of cases which involve mere application [italics ours] of unquestioned and unambiguous provisions of the constitution to a given state of facts. See Fews v. State, 1 Ga. App. 122 (58 S. E. 64); Cox v. State, 19 Ga. App. 283, 289 (91 S. E. 422).” Gulf Paving Co. v. Atlanta, 149 Ga. 114, 117 (99 S. E. 374). See also Howell v. State, 153 Gee. 201 (111 S. E. 675); Wright v. So. Ry. Co., 28 Ga. App. 545, 547, 548 (112 S. E. 171). In a case dealing with a request to certify to the Supreme Court a question, this court held: “A request to certify a question to the Supreme Court will not be granted by this court, even where the question involved is as to the constiiutioncclity of ce law, unless the decision of that question is essential to tile determination of
The constitutional question involved in the instant case is whether section BO of article 7 of the banking act of 1919 (Ga. L. 1919, p. 135) is violative of article 1, section 1, paragraph 3 of the constitution of this State, which provides that no person shall be deprived of his property without due process of law? The identical question was before the Supreme Court in Bennett v. Wheatley, 154 Ga. 591 (115 S. E. 83), and the majority of the court (in a four to two decision) held that the section was not unconstitutional. That decision is not in conflict with any older adjudication of the Supreme Court and has not been overruled or modified by any subsequent decision of that court. It is true that subsequently the same question was presented to the Supreme Court in Bennett v. Schwarz, 154 Ga. 885 (116 S. E. 306), and in Bennett v. American Bank & Trust Co., 162 Ga. 718 (134 S. E. 781). In each of those cases the trial judge, notwithstanding the ruling of the Supreme Court in the Wheatley case, supra (which was clearly binding as a precedent upon all the trial courts of this State), held that section BO of the act in question was unconstitutional; and both judgments were affirmed by operation of law, the Justices of the Supreme Court dividing three to three upon the
The original affidavit of illegality was based solely on the contention that section 20 of article 7 of the banking act of 1919 (Ga. L. 1919, p. 135) was void because it violated the “due-process-of-law” provision of the constitution of this State. In view of the decision of the Supreme Court in Bennett v. Wheatley, supra (which is binding as a precedent on all the trial courts of this State), that section 20 of the banking act in question was not violative of the “ due-process-of-law” provision of our State constitution, the affidavit of illegality showed upon its face as a matter of law that it set up no defense whatsoever to the stock-assess
Judgment reversed.