Rushing v. City of Plains

Court of Appeals of Georgia

Rushing v. City of Plains

264 S.E.2d 319, 152 Ga. App. 884, 1980 Ga. App. LEXIS 1640

CourtCourt of Appeals of Georgia

DecidedJanuary 8, 1980

Docket58592

StatusPublished

Cited by1 cases

This text of 264 S.E.2d 319 (Rushing v. City of Plains) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rushing v. City of Plains, 264 S.E.2d 319, 152 Ga. App. 884, 1980 Ga. App. LEXIS 1640 (Ga. Ct. App. 1980).

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Opinion

Birdsong, Judge.

The appellant Rushing was convicted in the City of Plains Recorder’s Court of a violation of a city ordinance which proscribes a refusal to comply with the lawful order of a police officer. Rushing appealed his conviction to the Superior Court of Sumter County. At a trial de novo before a jury, Rushing was again convicted and sentenced to pay a fine of $19 or, upon failure to pay the fine, to serve thirty days in the county jail. Rushing filed a motion for new trial which was denied. This appeal followed. Held:

1. This case is controlled by Cochran v. City of Rockmart, 242 Ga. 732 (251 SE2d 259). That case held at p. 734: "The writ of certiorari is a constitutional as well as a statutory remedy. The legislature has provided by general law the manner and means for carrying out this constitutional provision. The only power and authority given by the constitution to the superior courts to correct errors in inferior courts, is by the writ of certiorari.” It follows that the Superior Court of Sumter County was without jurisdiction to entertain an appeal from the recorder’s court of the City of Plains. All proceedings in the superior court emanating thereon are without legal effect. See Daniel v. City of Lawrenceville, 151 Ga. App. 333 (259 SE2d 720). The enumerations of error raised by Rushing are rendered moot by our disposition in this division of our opinion.

2. Rushing also contends that the city ordinance is unconstitutional because the state preempted the field by the enactment of Code Ann. § 26-2505 (Ga. L. 1968, pp. 1249, 1313) which provides: "Any person who knowingly and wilfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Edmonds v. City of Albany, 242 Ga. 648 (250 SE2d 458). This contention was first made at oral argument and was supported by argument in his brief and supplemental brief. Rushing did not challenge the constitutionality of the city ordinance either in the recorder’s court or the superior court. His attempt to raise this issue on appeal is not timely. Kosikowski v. Kosikowski, 243 Ga. 413, 414 (254 SE2d 363); Moore v. [885]*885State, 148 Ga. App. 14 (251 SE2d 17). The claimed unconstitutionally of this ordinance not being timely or properly raised, it is not invalid insofar as this appeal is concerned. Kosikowski v. Kosikowski, supra.

Argued October 17, 1979 — Decided January 8, 1980. Millard D. Fuller, for appellant. William Murray, John Parks, for appellee.

Judgment reversed.

Quillian, P. J., and Smith, J., concur.

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Birdsong, Judge.

The appellant Rushing was convicted in the City of Plains Recorder’s Court of a violation of a city ordinance which proscribes a refusal to comply with the lawful order of a police officer. Rushing appealed his conviction to the Superior Court of Sumter County. At a trial de novo before a jury, Rushing was again convicted and sentenced to pay a fine of $19 or, upon failure to pay the fine, to serve thirty days in the county jail. Rushing filed a motion for new trial which was denied. This appeal followed. Held:

1. This case is controlled by Cochran v. City of Rockmart, 242 Ga. 732 (251 SE2d 259). That case held at p. 734: "The writ of certiorari is a constitutional as well as a statutory remedy. The legislature has provided by general law the manner and means for carrying out this constitutional provision. The only power and authority given by the constitution to the superior courts to correct errors in inferior courts, is by the writ of certiorari.” It follows that the Superior Court of Sumter County was without jurisdiction to entertain an appeal from the recorder’s court of the City of Plains. All proceedings in the superior court emanating thereon are without legal effect. See Daniel v. City of Lawrenceville, 151 Ga. App. 333 (259 SE2d 720). The enumerations of error raised by Rushing are rendered moot by our disposition in this division of our opinion.

2. Rushing also contends that the city ordinance is unconstitutional because the state preempted the field by the enactment of Code Ann. § 26-2505 (Ga. L. 1968, pp. 1249, 1313) which provides: "Any person who knowingly and wilfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Edmonds v. City of Albany, 242 Ga. 648 (250 SE2d 458). This contention was first made at oral argument and was supported by argument in his brief and supplemental brief. Rushing did not challenge the constitutionality of the city ordinance either in the recorder’s court or the superior court. His attempt to raise this issue on appeal is not timely. Kosikowski v. Kosikowski, 243 Ga. 413, 414 (254 SE2d 363); Moore v. [885]*885State, 148 Ga. App. 14 (251 SE2d 17). The claimed unconstitutionally of this ordinance not being timely or properly raised, it is not invalid insofar as this appeal is concerned. Kosikowski v. Kosikowski, supra.

Argued October 17, 1979 — Decided January 8, 1980. Millard D. Fuller, for appellant. William Murray, John Parks, for appellee.

Judgment reversed.

Quillian, P. J., and Smith, J., concur.

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264 S.E.2d 319, 152 Ga. App. 884, 1980 Ga. App. LEXIS 1640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rushing-v-city-of-plains-gactapp-1980.

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