Kenimer v. WARD WIGHT REALTY COMPANY , 219 Ga. 275 ( 1963 )

219 Ga. 275 (1963) 133 S.E.2d 18

KENIMER
v.
WARD WIGHT REALTY COMPANY et al.

22130.

Supreme Court of Georgia.

Submitted September 11, 1963. Decided October 10, 1963.

Cullen M. Ward, William W. Daniel, for plaintiff in error.

Latimer & Allen, A. C. Latimer, contra.

MOBLEY, Justice.

The order of the trial court sustaining the oral motion of defendants to dismiss plaintiff's petition recited that "counsel for the plaintiff stated in open court and now vigorously urges upon the court that the action is a suit in tort under Code § 105-1207, and having taken that position in open court, the petition as amended must stand or fall upon that basis. American Oil Co. v. Roper, 64 Ga. App. 743." See also Orkin Termite Co. v. Duffell, 97 Ga. App. 68 (110 SE2d SE2d 629); Rhine v. Sanders, 100 Ga. App. 68 (110 SE2d 128). The plaintiff in his brief filed in this court takes the same position, insisting that the action is in tort against defendants for maliciously procuring the breach of a contract in which plaintiff had an interest. The election of plaintiff to proceed in tort removed all equity from the case and leaves only an action at law for money damages of which the Court of Appeals and not this court has jurisdiction. Code Ann. § 2-3704, 2-3708; Miller v. Ray, 208 Ga. 27 (1) (64 SE2d 449); Gay v. Lewis, 215 Ga. 317 (1) (109 SE2d 646); Hudon v. North Atlanta, 219 Ga. 179 (132 SE2d 74).

Transferred to the Court of Appeals. All the Justices concur.