Yield, Inc. v. City of Atlanta, 55276

• Decision Date: 07 March 1978
• Docket Number: No. 2,No. 55276,55276,2
• Citation: 244 S.E.2d 32,145 Ga.App. 172
• Parties: YIELD, INC. v. CITY OF ATLANTA
• Court: Georgia Court of Appeals

Page 32

244 S.E.2d 32

145 Ga.App. 172

YIELD, INC. v. CITY OF ATLANTA.

No. 55276.

Court of Appeals of Georgia,Division No. 2.

March 7, 1978.

Nadler, Gold & Beskin, Howard A. Gold, Atlanta, for appellant.

Mary Welcome, Sol., Paul L. Howard, Jr., Deputy Sol., Atlanta, for appellee.

McMURRAY, Judge.

This case involves the maintenance of a nuisance which action was brought in Municipal Court of the City of Atlanta. In Yield, Inc. v. City of Atlanta, 239 Ga. 578, 238 S.E.2d 351, the Supreme Court has held that where a party elects to proceed under Code § 72-401, it is an action at law, citing Attaway v. Coleman, 213 Ga. 329, 99 S.E.2d 154, and when the evidentiary standard contained in Code Ann. § 72-301 (as amended by Ga.L.1975, pp. 402, 403), is used, this does not convert the proceeding into an equitable one. See also Yield, Inc. v. City of Atlanta, 144 Ga.App. 637(2), 242 S.E.2d 478. Accordingly, the enumeration of error raising the constitutional and equitable issues and contending that equitable relief has not been conferred upon "the City Courts" (Municipal) of this State is not meritorious.

The application for the writ of certiorari to the lower court was made in this instance by the City of Atlanta after it had obtained an unfavorable ruling before the local magistrate in attempting to abate a nuisance in seeking the closing of certain establishments in the city. No bond was obtained in accordance with Code § 19-206 by the City of Atlanta and no certificate was produced from the magistrate whose decision of judgment was the subject matter of the complaint in obtaining the writ of certiorari. The only other enumeration of error here by the appellant in the lower court, is that the failure to file the certiorari bond invalidated the writ of error granted by the lower court and "in effect voided the Final Order" of that court. We do not find this point raised in the lower court in its consideration of the merits although it was thereafter pointed out to the court in an application for supersedeas that no valid certiorari bond had been filed. However, the appellee has moved to dismiss the appeal inasmuch as this issue was raised for the first time in this court. A question not raised and passed upon in the trial court presents nothing to review. The Court of Appeals has no jurisdiction to pass upon issues not raised or passed upon in the lower court. Such a question must be raised at the first opportunity. The application for supersedeas is...