Kyburz v. Cobb Bank & Trust Co.

245 S.E.2d 275, 241 Ga. 298, 24 U.C.C. Rep. Serv. (West) 222, 1978 Ga. LEXIS 1001

• Court: Supreme Court of Georgia
• Decided: May 2, 1978
• Docket: 33435
• Status: Published

Opinion

Marshall, Justice.

The contended basis for jurisdiction of this court in this appeal is an attack on the constitutionality of Ga. L. 1962, pp. 156, 422 (Code Ann. § 109A-9 — 503) which was made in the defendant-appellant’s counterclaim to the appellee-plaintiffs suit on a promissory note.

However, the appellee’s action in seizing the deposits of the appellant in his checking account with the appellee bank was done pursuant to a contractual right of set-off of the matured debt due it by the appellant depositor (Bank of Lawrenceville v. Rockmore & Co., 129 Ga. 582 (2) (59 SE 291) (1907); Briggs v. Southern Bakeries Co., 227 Ga. 663, (2) (182 SE2d 459) (1971)), and not pursuant to Code Ann. § 109A-9—503, supra. See Code Ann. § 109A-9—104 (g), (h) and (i) (Ga. L. 1962, pp. 156, 383; 1963, pp. 188, 196; 1964, pp. 70, 71). A decision on the constitutional question is therefore unnecessary because such decision could not affect the rights of the party attempting to raise such question. Gay v. Lewis, 215 Ga. 317 (2) (109 SE2d 646) (1959) and cits.

Argued April 11, 1978 Decided May 2, 1978. Downey, Cleveland & Moore, JohnH. Moore, Joseph C. Parker, for appellant. Berthold & Gordon, Jerry L. Berthold, James J. Brissette, Charles A. Evans, Howard H. Johnston, William H. Swartz, for appellees.

Since, as ruled above, the instant case is not an equity case and presents no constitutional question, and since no other question appears which will give this court jurisdiction, the Court of Appeals and not this court has jurisdiction of this case, and it must be and is transferred to that court.

Transferred to the Court of Appeals.

All the Justices concur.