124 Ga. App. 789 | Ga. Ct. App. | 1971
Lead Opinion
Plaintiff sued a number of alleged joint tortfeasors seeking to recover damages arising out of an alleged collision
The appeal attempts to raise by brief and argument here for the first time an attack upon the constitutionality of Code § 23-1502 which states that a county is not liable to suit unless made so by statute. The enumeration of error likewise raises constitutional attacks upon the doctrine of sovereign immunity for the first time in this court. The appellate courts of this State have no original jurisdiction but are courts for the correction of errors of law only arising in the lower courts. Thus, a constitutional question must be raised and distinctly passed on by the trial judge. Brown v. State, 114 Ga. 60 (2) (39 SE 873); Griggs v. State, 130 Ga. 16 (60 SE 103); Bentley v. Anderson-McGriff Hardware Co., 181 Ga. 813 (1) (184 SE 297); Thompson v. Allen, 195 Ga. 733 (25 SE2d 423). The attempt by brief for the first time to attack a statute as unconstitutional does not give the Supreme Court jurisdiction of this review by thus attacking the constitutionality of a law. There is no merit in the attempted constitutional attack upon the statute. Nor can we ascertain if a question of pure application was raised in the lower court in dismissing the petition. See in this connection, Head v. Edgar Bros. Co., 187 Ga. 409 (200 SE 792); Jarvis v. State, 197 Ga. 704 (30 SE2d 484); Thompson v. State, 199 Ga. 250 (33 SE2d 903). However, the question of sovereign immun
Judgment affirmed.
Rehearing
On Motion for Rehearing
In her motion for rehearing, plaintiff stoutly contends that she did properly raise the constitutional question involved here, by attacking the statute in the lower court. But she also shows that defendant filed a written motion to dismiss her complaint, premised on Code §23-1502 (sovereign immunity) and that she "filed her brief in opposition to defendant’s motion, attacking the constitutionality of sovereign immunity and Code § 23-1502.” (Emphasis supplied). But this is not a sufficient attack, in that she did not raise the point in her pleadings. See Hazlehurst v. Southern Fruit Distributors, 46 Ga. App. 453 (1) (167 SE 898). One who calls in question the constitutionality of a law must in his pleadings distinctly and clearly point out in what respect the law is violative of the Constitution. Laffitte v. Burke, 113 Ga. 1000 (39 SE 433);
Rehearing denied.