Galfas v. Ailor , 206 Ga. 76 ( 1949 )

Timothy Galfas, as trustee, petitioned the Board of Zoning Appeals of the City of Atlanta for a permit to erect a building for a place of worship within the City of Atlanta. The board, after a hearing, denied the petition. Being dissatisfied with that judgment, he filed a petition for certiorari, in the Superior Court of Fulton County, in which it was alleged, among other things, that the decision of the Board of Zoning Appeals, was illegal because it deprived him of stated constitutional rights respecting the use of property and the right to worship, in that the ordinances under which said board was operating and the legislative acts authorizing them were null and void, since they offended several enumerated provisions of the State and Federal Constitutions. Such a contention had not been previously made, but was raised for the first time in the petition for certiorari. The exception here is to a judgment overruling and dismissing the petition for certiorari. Held:

1. A question of constitutional law not raised in the tribunal whose judgment is under attack, but presented for the first time in a petition for certiorari to review the judgment complained of, is not properly raised for decision on a writ of error to this court. Martin v. State, 199 Ga. 731 (35 S.E.2d 151); Cheek v. White, 204 Ga. 321 (49 S.E.2d 819).

2. A petition for certiorari is in effect a motion for a new trial, in which the plaintiff must plainly and distinctly set forth the errors complained of, and an error which may be corrected thereby is one made by the tribunal whose judgment is being reviewed. Smith v. Macon, 202 Ga. 68 (42 S.E.2d 128); Cheek v. White, supra.

3. Since no question of constitutional law is properly presented for decision in the present case, and the case is not one which otherwise falls within the jurisdiction of this court, the writ of error must be transferred to the Court of Appeals as the court of review having jurisdiction. Code (Ann. Supp.), §§ 2-3704, 2-3708.

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

Nos. 16796, 16813. OCTOBER 12, 1949.