Hall v. Kelly

Felton, J.

E. H. Kelly sued E. P. Hall Jr., doing business under the trade-name “Walker County Messenger,” and J. C. Keown, individually, and as a member of the “taxpayers’ committee,” for damages for libel alleged to have been published by the defendants in a series of articles in the newspaper “Walker County Messenger.” The general and special demurrers of the defendants were overruled and they excepted. One ground of demurrer was that the action was prematurely brought for the reason that no notice in writing had been given to the publisher of the newspaper, “specifying the article and the statements therein which he claims to be false and defamatory and further stating in said notice what the complaining party claims to be the true state of facts,” as required by Ga. L. 1939, p. 313, which act provides that such notice must be given to the newspaper before any civil action can be filed because of any publication of a libel in a newspaper. The alleged libel occurred before the passage of the act of 1939, and the suit was filed after its passage.

1. This demurrer should have been sustained. The act of 1939 specifically excepted from its operation such actions as were pending at -the time of its passage, thereby evidencing a clear and indisputable intention that it should apply to causes of action then in existence on which no suits had been filed. This law was on the statute books at the time the instant suit was filed, and was and is presumed to be constitutional and valid until it is attacked and set aside. The plaintiff below made no attack whatsoever upon the statute in his petition, or otherwise in the lower court, so far as the record shows, and it is too well settled to require citation of authority that unless it appears from the record that a constitutional question was raised and passed on by the trial court, provided there was opportunity to do so, the question can not be raised on appeal. In this ease the act took away from the plaintiff certain rights. Whether they were vested or not we are not required to say. In order for the plaintiff to maintain an action to enforce the rights taken away by the act it was incumbent upon him to affirmatively assert its unconstitutionality and invalidity in his suit, because otherwise the validity of the law was presumed and its application to his case written into his petition, as it were. In pass ing on this demurrer the trial court evidently decided that the act was unconstitutional as to this plaintiff, but he was not authorized to do so because the question was not before him and it was his duty under the circumstances to treat the act as constitutional and valid. In this view it was error for the court to overrule the demurrer under discussion. This conclusion renders it unnecessary to pass on the other questions involved.

Judgment reversed.

Button, J., concurs.