Martin v. Davison-Paxon Co.

Jenkins, P. J.

1. The fact that a judgment of a superior court dismissing or overruling a writ of certiorari is based on a writ of which it had no jurisdiction is no ground for a dismissal by this court of a bill of exceptions to such judgment. The proper judgment of this court would be an affirmance of the judgment.

2. The plaintiff in the municipal court of Atlanta having in May, 1933, filed suit, and in September, 1933, obtained a judgment, and the defendant having thereafter by certiorari proceeded to the superior court from an adverse decision by the appellate division of the municipal court, all of which judgments and proceedings were subsequent to the act of March 10, 1933 (Ga. L. 1933, pp. 290, 298), abolishing the right of certiorari from the municipal court to the superior court, and the constitutionality of this provision not being questioned in the petition for certiorari or questioned or passed upon in or by the superior court, which overruled • the certiorari, this case is controlled by the ruling in Anderson v. West Lumber Co., 51 Ga. App. 333 (179 S. E. 738, 180 S. E. 361). Accordingly the judgment of the superior court must be affirmed, since, under the terms of the statute as written and unquestioned, the court was without jurisdiction to consider the certiorari.

After this ease was decided, the opinion was withdrawn and held up pending consideration of the motion for rehearing which was made in Anderson v. West Lumber Co., supra. What was said upon the denial of that motion would have equal application to this ease.

Decided June 28, 1935. Sydney H. Baynes, for plaintiff in error. Houston White, Edwin Pearce, contra.

Judgment affirmed.

Stephens and Sutton, JJ., concur.