Daniel v. Federal National Mortgage Assn.

Supreme Court of Georgia

Daniel v. Federal National Mortgage Assn.

202 S.E.2d 388, 231 Ga. 385, 1973 Ga. LEXIS 715

CourtSupreme Court of Georgia

DecidedOctober 26, 1973

Docket28244

StatusPublished

Cited by18 cases

This text of 202 S.E.2d 388 (Daniel v. Federal National Mortgage Assn.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Daniel v. Federal National Mortgage Assn., 202 S.E.2d 388, 231 Ga. 385, 1973 Ga. LEXIS 715 (Ga. 1973).

Pincite

Opinions

Nichols, Justice.

The motion to dismiss relies upon the Act of 1945 (Ga. L. 1945, pp. 135,138; Code Ann. § 110-1106), and cases exemplified by Board of Ed. of Hall County v. Shirley, 226 Ga. 770 (177 SE2d 711), and cits. That case, like those cited in such opinion, were declaratory judgment cases and the Act of 1945, supra, relates only to declaratory judgment proceedings. There is no law on the statute books in Georgia of which this court is aware, and none has been cited by counsel, which requires such service upon the Attorney General in other than declaratory judgment proceedings.

The brief of the appellee in support of such motion, as well as the brief filed by the Attorney General as amicus curiae, presents excellent argument as why such a law should be enacted, but such is the prerogative of the General Assembly and not this court. Accordingly, the motion to dismiss the appeal on such ground is denied.

It is always the duty of this court to inquire into its jurisdiction. Lane v. Morrison, 226 Ga. 526 (175 SE2d 830). The plaintiff in the trial court sought only possession of its property. It did not seek rent or damages. The proceedings against the tenant holding over was brought in the Civil Court of Fulton County and a direct appeal from the judgment of the trial judge was filed without seeking a review of such judgment in the appellate division of such court. The Act creating the Civil Court of Fulton County (originally Atlanta Municipal Court) and the amendments thereto, particularly the Act of 1933 (Ga. L. 1933, pp. 290, 292), provides that cases involving an amount exclusive of interest, attorney fees and costs of less than $300 shall be first appealed to the appellate division of that court and then a procedure is provided for appeals to the Court of Appeals or this court as the case may be.

In cases where a direct appeal to the appellate courts does not [388]*388lie, the appellate court does not have jurisdiction of such appeal and the same must be dismissed. Compare Atlanta Laundricoin Corp. v. Hunnicutt, 93 Ga. App. 87 (91 SE2d 127); Davis v. Hulsey, 102 Ga. App. 317 (116 SE2d 313). See also General Assurance Corp. v. Roberts, 92 Ga. App. 834 (90 SE2d 70); Lymon v. Hollywood Fashions, 126 Ga. App. 627 (191 SE2d 473); and Reese v. Termplan, Inc., Bolton, 128 Ga. App. 527 (197 SE2d 387).

In Tomlin v. Harper, 6 Ga. App. 808 (65 SE 1093), the Court of Appeals followed the decision of this court in Rigell v. Sirmans, 123 Ga. 455 (51 SE 381), and held: "Where the only purpose of the proceeding was to obtain possession of the premises which it was alleged the tenant was holding over beyond her term, there was no sum or damages claimed.” P. 809. That case involved the proper procedure to have a judgment of a county court reviewed by the Superior Court (appeal or certiorari), and it was held: "The superior court is without jurisdiction to entertain an appeal from the judgment of the county court upon a proceeding to evict a tenant holding over, where the possession of the premises in dispute is the only issue involved, and no money judgment is contemplated. Errors alleged to have been committed by the county court in such a case must be reviewed by certiorari.” Id., Hn. 1.

In Healey Real Estate &c. Co. v. Wilson, 74 Ga. App. 63 (1) (38 SE2d 747), a case dealing with an appeal to the Court of Appeals from the Civil Court of Fulton County, it was held: "No amount was involved in the present dispossessory warrant proceeding, under the facts of the case, within the meaning of the provisions of the Act of March 10, 1933 (Ga. L. 1933, p. 290 et seq.), as amended, so as to authorize a direct bill of exceptions to this court to review a judgment of the trial judge of the Civil Court of Fulton County overruling the motion for a new trial; and consequently this court is without jurisdiction to entertain the writ of error in this case and the same must be dismissed.”

Under such Act a direct appeal will not lie in the case sub judice and the appeal must be dismissed.

Appeal dismissed.

All the Justices concur, except Gunter and Ingram, JJ., who dissent from the ruling made in Division 2 and from the judgment of dismissal.

Free access — add to your briefcase to read the full text and ask questions with AI

Nichols, Justice.

The motion to dismiss relies upon the Act of 1945 (Ga. L. 1945, pp. 135,138; Code Ann. § 110-1106), and cases exemplified by Board of Ed. of Hall County v. Shirley, 226 Ga. 770 (177 SE2d 711), and cits. That case, like those cited in such opinion, were declaratory judgment cases and the Act of 1945, supra, relates only to declaratory judgment proceedings. There is no law on the statute books in Georgia of which this court is aware, and none has been cited by counsel, which requires such service upon the Attorney General in other than declaratory judgment proceedings.

The brief of the appellee in support of such motion, as well as the brief filed by the Attorney General as amicus curiae, presents excellent argument as why such a law should be enacted, but such is the prerogative of the General Assembly and not this court. Accordingly, the motion to dismiss the appeal on such ground is denied.

It is always the duty of this court to inquire into its jurisdiction. Lane v. Morrison, 226 Ga. 526 (175 SE2d 830). The plaintiff in the trial court sought only possession of its property. It did not seek rent or damages. The proceedings against the tenant holding over was brought in the Civil Court of Fulton County and a direct appeal from the judgment of the trial judge was filed without seeking a review of such judgment in the appellate division of such court. The Act creating the Civil Court of Fulton County (originally Atlanta Municipal Court) and the amendments thereto, particularly the Act of 1933 (Ga. L. 1933, pp. 290, 292), provides that cases involving an amount exclusive of interest, attorney fees and costs of less than $300 shall be first appealed to the appellate division of that court and then a procedure is provided for appeals to the Court of Appeals or this court as the case may be.

In cases where a direct appeal to the appellate courts does not [388]*388lie, the appellate court does not have jurisdiction of such appeal and the same must be dismissed. Compare Atlanta Laundricoin Corp. v. Hunnicutt, 93 Ga. App. 87 (91 SE2d 127); Davis v. Hulsey, 102 Ga. App. 317 (116 SE2d 313). See also General Assurance Corp. v. Roberts, 92 Ga. App. 834 (90 SE2d 70); Lymon v. Hollywood Fashions, 126 Ga. App. 627 (191 SE2d 473); and Reese v. Termplan, Inc., Bolton, 128 Ga. App. 527 (197 SE2d 387).

In Tomlin v. Harper, 6 Ga. App. 808 (65 SE 1093), the Court of Appeals followed the decision of this court in Rigell v. Sirmans, 123 Ga. 455 (51 SE 381), and held: "Where the only purpose of the proceeding was to obtain possession of the premises which it was alleged the tenant was holding over beyond her term, there was no sum or damages claimed.” P. 809. That case involved the proper procedure to have a judgment of a county court reviewed by the Superior Court (appeal or certiorari), and it was held: "The superior court is without jurisdiction to entertain an appeal from the judgment of the county court upon a proceeding to evict a tenant holding over, where the possession of the premises in dispute is the only issue involved, and no money judgment is contemplated. Errors alleged to have been committed by the county court in such a case must be reviewed by certiorari.” Id., Hn. 1.

In Healey Real Estate &c. Co. v. Wilson, 74 Ga. App. 63 (1) (38 SE2d 747), a case dealing with an appeal to the Court of Appeals from the Civil Court of Fulton County, it was held: "No amount was involved in the present dispossessory warrant proceeding, under the facts of the case, within the meaning of the provisions of the Act of March 10, 1933 (Ga. L. 1933, p. 290 et seq.), as amended, so as to authorize a direct bill of exceptions to this court to review a judgment of the trial judge of the Civil Court of Fulton County overruling the motion for a new trial; and consequently this court is without jurisdiction to entertain the writ of error in this case and the same must be dismissed.”

Under such Act a direct appeal will not lie in the case sub judice and the appeal must be dismissed.

Appeal dismissed.

All the Justices concur, except Gunter and Ingram, JJ., who dissent from the ruling made in Division 2 and from the judgment of dismissal.

Cite This Page — Counsel Stack

Bluebook (online)

202 S.E.2d 388, 231 Ga. 385, 1973 Ga. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-v-federal-national-mortgage-assn-ga-1973.

Opinions

Related

Cite This Page — Counsel Stack