Anderson v. West Lumber Co. , 51 Ga. App. 333 ( 1935 )

Jenkins, P. J.

In the municipal court of Atlanta the maker and the indorser on promissory notes were sued, and on February 13, 1933, the plaintiff obtained a judgment for $491. On March 3, 1933, the indorser’s motion for a new trial was denied. On- March 13, 1933 (subsequent to the act approved March 10, 1933, Ga. L. 1933, pp. 290, 298, abolishing the right of certiorari from the municipal court to the superior court), the defendant appealed to the appellate division of the municipal court, which on June 3, 1933, affirmed the judgment. On June 28, 1933, the superior court of Fulton county sanctioned the defendant’s petition for certiorari, and on November 28, 1933, entered a judgment overruling the certiorari and- denying a new trial. From this judgment writ of error was brought to the Supreme Court, which transferred the case to this court. Held: This case is controlled by the ruling of this court in Cable Piano Co. v. Williamson, 49 Ga. App. 529 (176 S. E. 103), where it was held that section 42-A of the act of March 10, 1933, explicitly abolished the right of certiorari from the municipal court of Atlanta. The action of the superior, court in overruling the certiorari was tantamount to a dismissal. Code 1933, § 19-501. “Wliere the order of the judge of the superior court, dismissing a petition for certiorari, is proper and legally justified for a reason other than that assigned by him, his action will be affirmed.” Hudson v. Higgins, 45 Ga. App. 358 (2) (164 S. E. 688). Even if the judgment of the superior court should be treated as based upon the merits of the petition for certiorari, rather than on absence of jurisdiction to entertain the petition, the judgment must be affirmed, for the reason that the superior court, under the terms of the statute cited, was without jurisdiction to consider the certiorari. This provision of the law, depriving the superior court of jurisdiction on certiorari from the municipal court, must be given effect as written, without any consideration of the question as to its constitutionality, since in this case, as in Hutchings v. Roquemore, 164 Ga. 637 (139 S. E. 216), and in the Oable case, supra, the constitutionality of the provision was in no wise questioned or passed upon in or by the superior court. In Fuller v. Yetter, 40 Ga. App. 58 (148 S. E. 751), it appears that, notwithstanding the validity of a statute similar to this had not been questioned in the petition for certiorari, the superior court treated that act as void in view of a previous adjudication by the Supreme Court of the unconstitutionality of that particular statute. See Empire Investment Co. v. Hutchings, 166 Ga. 749 (144 S. E. 209). Consequently, the Puller ease is not contrary to the ruling made in Hutchings v. Roquemore, supra.

Decided April 3, 1935. Rehearing denied June 28, 1935. Charles W. Anderson, Frank D. Pierson, for plaintiff in error. Jones, Fuller, Russell & Clapp, J. D. McLamb, contra.

Judgment affirmed.

Stephens and Sutton, JJ., concur.