McLanahan Crushed Stone, Inc. v. Rousey

224 Ga. 433 | Ga. | 1968

Nichols, Justice.

In Case No. 24712 the husband and three named sons of Mrs. Fannie Mat Rousey filed an action against McLanahan Crushed Stone, Inc. to recover for her alleged wrongful death resulting from a collision between a truck owned by the defendant and an automobile in which the deceased was riding. In Case No. 24713 the same plaintiffs sued the driver of the truck. The petition named two other children of the deceased and prayed that they be served as required by the 1960 amendment of Code Ann. § 105-1306 (Ga. L. 1960, p. 968). Thereafter, the defendant filed a motion to dismiss the plaintiffs’ petition in each case alleging that Code § 105-1306 as amended by the Act of 1960, supra, is unconstitutional, and prayed “That Code Section 105-1306, as amended, as aforesaid, be declared unconstitutional, in so far as it purports . . .” The trial court overruled the motion to dismiss and the sole basis of this court’s jurisdiction of the tort action (other questions being presented by the appeal) is the attack on the constitutionality of the above reference Code Section. Held:

Argued June 11, 1968 Decided June 20, 1968. Heard & Leverett, E. Freeman Leverett, for appellants. Grant & Matthews, Carlton G. Matthews, Randall Evans, Jr., for appellees.

Under the decisions in Flynn v. State, 209 Ga. 519 (74 SE2d 461); Richmond Concrete Products Co. v. Ward, 212 Ga. 773 (95 SE2d 677); Georgia Power Co. v. City of Cedartown, 223 Ga. 453 (156 SE2d 51), the purported constitutional attacks fall short of properly raising a constitutional question, and the Court of Appeals, and not this court, has jurisdiction of the appeals.

Transferred to the Court of Appeals.

All the Justices concur.