Sandmann v. Smith

190 S.E.2d 904, 229 Ga. 335, 1972 Ga. LEXIS 605

• Court: Supreme Court of Georgia
• Decided: July 12, 1972
• Docket: 27238
• Status: Published

Opinion

Grice, Presiding Justice.

This is an appeal from the grant of a summary judgment in a proceeding seeking the writ of mandamus with respect to the disposition of certain traffic cases in a municipality. The appellant W. A. "Tony” Sandmann, acting pro se, filed a petition for the writ against Ben T. Smith individually and as District Attorney for Cobb County in the Superior Court of that county.

The prayers were in essence that the appellee be directed to take appropriate legal action against the Recorder’s Court of the City of Kennesaw, Georgia, for the unauthorized practice of law by the recorder while performing the duties of that office; and that he be required to file an action to seek to enjoin the Recorder’s Court from trying certain moving traffic violations of which it had no jurisdiction.

The appellee answered, denying the essential allegations, and subsequently filed a motion for summary judgment.

The trial court sustained the motion, which order is now appealed.

The enumerations of error argue at some length matters which were not raised in the trial court and therefore not now properly before this court. The only issue here is whether the motion for summary judgment was properly granted. In our view it was.

1. The charter of the City of Kennesaw (Ga. L. 1971, p. 3645 et seq.) establishes the Recorder’s Court, the duties of the recorder and his qualifications. Nowhere in this charter is it required that the recorder be a licensed attorney at law. Nor, as far as can be ascertained, is there any other law in this State so requiring.

It follows that the appellant’s contentions in this regard ' are without merit.

2. The record shows by the minutes of the Mayor and City Council of the City of Kennesaw dated January 24, 1972, that the city had properly adopted the Uniform Act Regulating Traffic on Highways (Ga. L. 1953, Nov. Sess., p. 556 et seq.; as amended 1955, p. 736 et seq.; Code Ann. Ch. 68-16).

This court in Gordon v. Green, 228 Ga. 505 (186 SE2d 719) upheld the constitutionality of this Act and the right of municipalities to adopt such ordinances, provided they were not located in counties having a population of less than 108,000. The appellant admitted that the City of Kennesaw was located in a county having a population in excess of 110,000 according to the last census.

Since the Act became effective in Kennesaw on March 1, 1972, and the motion for summary judgment was granted on March 9, 1972, any issues raised by the appellant as to the authority of the Recorder’s Court to try cases involving the moving traffic violations complained of here are now moot.

Therefore, since there was no genuine issue of material fact the appellee was entitled to a summary judgment as a matter of law.

Judgment affirmed.

All the Justices concur.