Herring v. Ferrell

216 S.E.2d 862, 234 Ga. 620, 1975 Ga. LEXIS 1202

• Court: Supreme Court of Georgia
• Decided: June 17, 1975
• Docket: 30018
• Status: Published

Opinion

Per curiam.

This is an appeal from the final decree of the Superior Court of Grady County, making the judgment of the Court of Appeals in Herring v. Ferrell, 130 Ga. App. 431 (203 SE2d 617), as partially reversed on certiorari in Herring v. Ferrell, 233 Ga. 1 (209 SE2d 599), the judgment of the trial court. Jurisdiction in this court is asserted on the basis of extraordinary remedies and injunctive and equitable relief.

Appellants emphasize that this is a class action as previously determined by this court on certiorari, and that class actions are suits in equity, citing City of Atlanta v. Ga. Society &c. Engineers, 220 Ga. 62 (137 SE2d 41). That case involved an equitable class action under former Code § 37-1002, which was repealed by the 1966 Civil Practice Act in which Code Ann. § 81A-123 now appears. Code Ann. § 81A-123 provides for class actions where the requirements of that section are met, either at law or equity depending upon the type of relief sought.

Jurisdiction of appeals in class actions brought pursuant to Code Ann. § 81 A-123 is to be determined by the nature of the relief sought and the questions raised on appeal (as opposed to automatically treating class actions as equitable cases appealable to this court).

The relief sought in this case and the questions raised on this appeal are, as they were on the prior appeal to the Court of Appeals, within the jurisdiction of that court and this case is transferred to the Court of Appeals.

Argued June 10, 1975 Decided June 17, 1975. Alexander, Vann & Lilly, Thomas K. Vann, Jr., Roy M. Lilly, for appellants. Arthur K. Bolton, Attorney General, H. Perry Michael, Senior Assistant Attorney General, Carlisle & Chason, Willard H. Chason, for appellees.

Transferred to the Court of Appeals.

All the Justices concur, except Hill, J., disqualified.