Cumbess v. State

246 S.E.2d 186, 241 Ga. 421, 1978 Ga. LEXIS 1005

• Court: Supreme Court of Georgia
• Decided: June 27, 1978
• Docket: 33531
• Status: Published

Opinion

Marshall, Justice.

The appellants were convicted in the County Court of Echols County of violations of the Game and Fish Code (Code Ann. Title 45; Ga. L. 1977, p. 396 et seq.). Their "appeal” and motion to dismiss the charges against them, filed in the Superior Court of Echols County, were properly treated as a petition for writ of certiorari, as questions of law only were involved. Toole v. Edmondson & Seay, 104 Ga. 776 (31 SE 25) (1898).

The judgment of the superior court denying the appellants’ motion must be affirmed because (1) the petition was not in compliance with the procedural requirements of the Act providing for certiorari from the County Court of Echols County (Ga. L. 1953, pp. 3195, 3207, § 12); (2) the constitutional attacks on Code Ann. §§ 45-515 and 45-517 (Ga. L. 1977, pp. 396, 456) and Code Ann. Title 45 generally, were waived by not having been made at the first opportunity in the County Court of Echols County (Edwards v. City of Albany, 136 Ga. App. 488 (1) (221 SE2d 681) (1975) and cits.); and (3) the appellants’ failure to raise the issue of the absence or insufficiency of their accusations, in either the county court or the superior court, forecloses review of the issues on appeal. Zirkle v. State, 235 Ga. 289, 292 (2) (219 SE2d 389) (1975) and cits.

Under a line of cases of both the Court of Appeals and this court, the appellants’ payment of the fine imposed by the judgment from which they appeal would make the issues sought to be raised moot. See Edwards v. City of Albany, supra, (2) and cits.; Gunn v. State, 139 Ga. App. 654 (229 SE2d 74) (1976) and cits., including Brown v. City of Atlanta, 123 Ga. 497 (3) (51 SE 507) (1905). As to the effect of subsequent cases of the Supreme Court of the United States and of this court, see Chaplin v. State, 141 Ga. App. 788 (1) (234 SE2d 330) (1977) and cits., overruling Division 2 of Edwards, supra, and similar cases of the Court of Appeals. See also Jefferson v. State, 141 Ga. App. 712 (1) (234 SE2d 333) (1977); Pressley v. State, 142 Ga. App. 701 (1) (237 SE2d 8) (1977).

Judgment affirmed.

All the Justices concur. Submitted May 9, 1978 Decided June 27, 1978. A. W. Touchton, for appellant. H. Lamar Cole, District Attorney, Richard W. Shelton, Assistant District Attorney, for appellee.