Green v. State
244 Ga. 755
Ga.
1979
Check Treatment

GREEN v. THE STATE

35453

Supreme Court of Georgia

November 21, 1979

755

provisions allowing reduction of the judgment. Code Ann. § 46-509. A rule of law requiring the plaintiff to know at his peril that a garnishee holds money or property subject to garnishment prior to executing the affidavit would destroy the usefulness of garnishment as a means of discovering, freezing and obtaining money or property in satisfaction of judgment. The trial court did not err in granting Km‘s motion for summary judgment and in dismissing the bank‘s complaint.

Judgment affirmed. All the Justices concur.

ARGUED OCTOBER 9, 1979 -- DECIDED NOVEMBER 21, 1979.

George P. Dillard, William F. Rucker, for appellant. H. Lamar Mixon, Joseph B. Haynes, M. Jerome Elmore, for appellee.

HALL, Justice.

Green, convicted in 1979 of burglary after three prior felony convictions, was sentenced under the habitual offender statute, Code Ann. § 27-2511, to serve 20 years without parole. He seeks to bring his appeal to this court, urging as his single jurisdictional ground an argument that the cited Code section is unconstitutional because prohibiting parole of some sentences conflicts with the authority given the State Board of Pardons and Paroles in Art. IV, Sec. II of our State Constitution (Code § 2-2001). The merits of this argument have never been decided. At our request, the Attorney General of Georgia has filed a helpful brief.

Appellee urges that Green raises this point for the first time on appeal, having failed to raise it adequately at trial. Assuming without deciding that Green has not waived the point, he is plainly without standing to raise this constitutional argument. The habitual offender statute dates from 1953, and the identical argument was sought to be raised in 1956 in a case in which the claim was made that the statute was void as violative of the parole board‘s powers. This court ruled that the appellant was without standing to contest the statute until such time as he claimed a right of parole and the statute was asserted against him as a bar. , cert. den. . Thus, the law of Georgia is clear that Green may not now raise this issue. Id. See . See also .

No issue remaining which would invoke this court‘s jurisdiction, the appeal will be transferred to the Court of Appeals.

Transferred to the Court of Appeals. All the Justices concur, except Hill, J., who concurs specially.

SUBMITTED OCTOBER 9, 1979 — DECIDED NOVEMBER 21, 1979.

J. Sewell Elliott, Jr., Brown, Katz, Dasher & Flateau, S. Phillip Brown, for appellant.

W. Donald Thompson, District Attorney, Willis B. Sparks, III, Assistant District Attorney, for appellee.

Russell N. Sewell, Assistant Attorney General, amicus curiae.

HILL, Justice, concurring specially.

I concur in the judgment. However, see Op. Atty. Gen. 69-431.

35455. LONGSTREET v. SHERIFF OF GILMER COUNTY.

Judgment affirmed without opinion pursuant to Rule 59.

All the Justices concur.

SUBMITTED SEPTEMBER 28, 1979 — DECIDED NOVEMBER 21, 1979.