Opinion
18245.
ARGUED JUNE 9, 1953.
DECIDED JUNE 10, 1953.
Declaratory judgment. Before Judge Pratt, Presiding. DeKalb Superior Court. April 8, 1953.
Young H. Fraser and John Wesley Weeks, for plaintiffs in error.
J. A. McCurdy and H. O. Hubert Jr., for party at interest not party to record.
Wm. G. McRae and J. E. B. Stewart, contra.
1. A petition seeking a declaratory judgment under Ga. L. 1945, p. 137 (Code, Ann. Supp., § 110-1101 et seq.) is not per se an equitable action. Felton v. Chandler, 201 Ga. 347 ( 39 S.E.2d 654); Georgia Casualty Surety Co. v. Turner, 208 Ga. 782 ( 69 S.E.2d 771).
2. The ruling by the trial judge, unexpected to, upholding the constitutionality of the Civil Service Act for DeKalb County, became the law of the case, and eliminated therefrom the only relief sought that would have given the Supreme Court jurisdiction. Constitution, art. VI, sec. II, par. IV (Code, Ann., § 2-3704).
3. The constitutional question which this case originally contained having been eliminated before the declaratory judgment here complained of, the Court of Appeals and not this court has jurisdiction. Martin v. Home Owners Loan Corp., 198 Ga. 288 ( 31 S.E.2d 407).
Transferred to the Court of Appeals. All the Justices concur, except Atkinson, P. J., not participating.
No. 18245. ARGUED JUNE 9, 1953 — DECIDED JUNE 10, 1953.
Robert K. Broome filed in the Superior Court of DeKalb County, against C. M. Boggs and others, a petition seeking a determination by a declaratory judgment: That under existing laws the petitioner as Sheriff of DeKalb County was entitled to designate the persons who should be his deputies, and to remove them at his pleasure; that the act to create a Civil Service System in DeKalb County (Ga. L. 1951, p. 3226) was violative of stated provisions of the Constitution of 1945; that named defendants, who had been deputies under a former sheriff, were not classified employees of DeKalb County as defined in the act of 1951, supra.
After hearing the case upon an agreed statement of facts, the trial judge determined: (1) that the Civil Service Act for DeKalb County, supra, has no application to deputy sheriffs of the county, and the petitioner as sheriff of the county acted under authority of law in naming his deputies; (2) that named defendants are not entitled under existing laws to hold office as deputies of the sheriff; (3) that the Civil Service Act for DeKalb County, is, as against the attack made by petitioner on constitutional grounds, a valid and subsisting law.
The defendant Boggs and others excepted to the above declaratory judgment and brought the case to the Supreme Court by direct bill of exceptions. There was no exception to the portion of the judgment holding that the Civil Service Act in question was, as against the attack made by the petitioner on constitutional grounds, a valid and subsisting law.