Phillips v. NATIONAL BEN FRANKLIN INSURANCE COMPANY , 229 Ga. 258 ( 1972 )

229 Ga. 258 (1972) 190 S.E.2d 916

PHILLIPS
v.
NATIONAL BEN FRANKLIN INSURANCE COMPANY et al.

27244.

Supreme Court of Georgia.

Argued June 13, 1972. Decided June 15, 1972.

Frank M. Eldridge, for appellant.

Orr & Joyner, John Joyner, Swift, Currie, McGhee & Hiers, George W. Hart, Frederick F. Saunders, William Zachary, Sr., for appellees.

NICHOLS, Justice.

This declaratory judgment action was filed by an automobile liability insurance carrier to determine its liability upon a policy of insurance issued to Mrs. Minnie R. Coleman upon a described automobile. The original action included, in addition to the named insured and driver, the plaintiffs in separate litigation arising from a collision involving such automobile. By amendment Valencia Phillips and her mother were added as additional parties defendant. After defensive pleadings had been filed by these defendants, a hearing was held and an order issued which restrained and enjoined Valencia Phillips and her mother from proceeding with a separate law suit against the plaintiff's insureds until a final determination in the declaratory judgment action. On the day following the above hearing, but before any judgment had been rendered, an amendment was filed to the Phillips' pleadings which sought to attack the constitutionality of certain provisions of the Declaratory Judgments Act. The trial court authorized an immediate review of its judgment and an appeal was taken to the Court of Appeals, which court transferred the appeal to this court and wrote an opinion which sought to show that because of such attack on the constitutionality of the statute the case was one within the jurisdiction of the Supreme Court and not the Court of Appeals. The judgment of the trial court appealed from shows that it was based upon a hearing held on December 9, 1970, and does not show that any consideration was given to the defensive pleadings filed the following day which sought to raise the constitutional question. Held:

Under decisions exemplified by Perry v. Maryland Casualty Co., 216 Ga. 93 (115 SE2d 102), this case is one within the jurisdiction of the Court of Appeals since the trial court has never passed upon the constitutionality of the legislative Act attacked by the supplemental defensive pleadings.

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