Opinion
13705.
MAY 17, 1941.
Certiorari. Before Judge Franklin. Richmond superior court.
Fleming Fleming, for plaintiff.
Benjamin E. Pierce, Benjamin E. Pierce Jr. and Franklin H. Pierce, for defendant.
Writ of error on overruling of certiorari was returnable to the Court of Appeals. The case was not one in equity.
No. 13705. MAY 17, 1941.
This bill of exceptions was brought from a judgment of Richmond superior court, overruling a petition for certiorari from the municipal court of Augusta, after disallowing an amendment to that petition. The record shows that in 1925 a fi. fa. was issued on a judgment of the same superior court; and that in 1927 another fi. fa. was issued on another judgment rendered against the same defendant as principal and his surety on a supersedeas bond, after a remittitur from the Court of Appeals. Pierce v. Jones, 36 Ga. App. 561. On an affidavit in the municipal court, stating that the plaintiff's debt was based on the 1925 judgment in the superior court, the municipal court issued garnishments returnable to the superior court. On motion by the defendant the municipal court passed an order holding the garnishments void, because both of the judgments and executions on which they were based were barred by the state of limitations, and because the second execution was illegal for another reason. The petition for certiorari assigned error on these rulings, and attacked the jurisdiction of the municipal court on the ground that the garnishments were returnable to the superior court. The judge of the superior court sanctioned the writ. In the present bill of exceptions, the petitioner for certiorari assigns error on the grounds that the judge of the superior court was without authority to hold adversely to the petitioner after sanctioning the writ; that he "erred in not holding all proceedings in the municipal court void because the case . . was pending in the superior court and the garnishments were returnable to that court, and the municipal court had no jurisdiction whatever. Also the action of the municipal court involved a stretch of any powers of equity, and under the law that court has no equity jurisdiction. The garnishees were mere intermeddlers;" and "when the certiorari reached the judge of the superior court, all the issues in the case were before him for adjudication on their merits as justice and equity required." The bill of exceptions recites that it "goes to the Supreme Court because it involves a question of equity." In neither the petition for certiorari nor the proceedings in the municipal court is there any reference to any question of equity. The record also fails to show that the original superior-court case, in which the judgments forming the basis of the municipal court garnishments were entered, was an equity case.
1. The mere designation of a case as one in "equity," without any averment or prayer which claims an equitable right or on which equitable relief could be granted, will not make the case one in equity such as will give this court jurisdiction of the writ of error. Berry v. Travelers Insurance Co., 190 Ga. 772 ( 10 S.E.2d 753), and cit.; Moseley v. Alspaugh, 192 Ga. 216 ( 14 S.E.2d 737).
2. "The plaintiff in error can not, by bill of exceptions, raise points which were not made in the [trial] court or in the [petition for] certiorari;" and "in reviewing a judgment . . of the superior court overruling a certiorari, questions which might have been made in the inferior judicatory but which are not referred to in the petition for certiorari will not be considered." Perry v. Brunswick Western Ry. Co., 119 Ga. 819 ( 47 S.E. 172).
3. This is a bill of exceptions from a judgment of the superior court overruling a petition for certiorari to a municipal court, which petition attacked the jurisdiction and rulings of the municipal court on garnishments issued by the municipal court and returnable to the superior court. The original judgment, on which the garnishments issued, was in the superior court. That case was one at law. See Pierce v. Jones, 36 Ga. App. 561 ( 137 S.E. 296). The record fails to show any reference to any equitable right or remedy invoked either in the municipal-court proceedings or in the petition for certiorari to the superior court. Under the preceding rulings, a mere statement in the bill of exceptions that "the action of the municipal court involved a stretch of any powers of equity, and under the law that court has no equity jurisdiction." and that the certiorari was before the superior court to decide all issues "as justice and equity required," would not, on any theory, make the case one in equity. Accordingly, the writ of error must be
Transferred to the Court of Appeals. All the Justices concur.