Summary
In Yield, Inc. v. City of Atlanta, 239 Ga. 578 (238 S.E.2d 351), the Supreme Court has held that where a party elects to proceed under Code § 72-401, it is an action at law, citing Attaway v. Coleman, 213 Ga. 329 (99 S.E.2d 154), and when the evidentiary standard contained in Code Ann. § 72-301 (as amended by Ga. L. 1975, pp. 402, 403), is used, this does not convert the proceeding into an equitable one. See also Yield, Inc. v. City of Atlanta, 144 Ga. App. 637 (2).
Summary of this case from Yield, Inc. v. City of AtlantaOpinion
32538.
ARGUED JULY 13, 1977.
DECIDED SEPTEMBER 7, 1977.
Abatement of public nuisance. Fulton Superior Court. Before Judge Fryer.
Nadler, Gold Beskin, Howard A. Gold, for appellant. Mary Welcome, Assistant Solicitor, Paul Howard, Jr., Deputy Solicitor, for appellee.
This case was originally filed in the Court of Appeals of Georgia. In a memorandum opinion, it was transferred here, that court being of the opinion that the case was one involving equity so as to be under the exclusive appellate jurisdiction of the Supreme Court of Georgia. We do not agree. The case is not an equity action and should be transferred to the Court of Appeals.
Appellee in this case proceeded under Code Ann. § 72-401 which authorizes a municipal court to determine the existence of and abate nuisances. It is the settled law in Georgia that where a party elects to proceed under this Code section, it is an action at law. Attaway v. Coleman, 213 Ga. 329 ( 99 S.E.2d 154) (1957). Code Ann. § 72-301 served as an evidentiary standard only, and its application did not convert the proceeding into an equitable one.
No constitutional attack was made by appellant in the trial court, and the failure to raise the issue there precludes consideration of the alleged error on appeal. Zirkle v. State, 235 Ga. 289 ( 219 S.E.2d 389) (1975); Carter v. Pruitt, 235 Ga. 204 ( 219 S.E.2d 114) (1975).
Transferred to the Court of Appeals. All the Justices concur.