Yield, Inc. v. City of Atlanta , 239 Ga. 578 ( 1977 )

239 Ga. 578 (1977) 238 S.E.2d 351

YIELD, INC.
v.
CITY OF ATLANTA.

32538.

Supreme Court of Georgia.

Argued July 13, 1977. Decided September 7, 1977.

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

Mary Welcome, Assistant Solicitor, Paul Howard, Jr., Deputy Solicitor, for appellee.

BOWLES, Justice.

This case was originally filed in the Court of Appeals of Georgia. In a memorandum opinion, it was transferred here, that court being of the opinion that the case was one involving equity so as to be under the exclusive appellate jurisdiction of the Supreme Court of Georgia. We do not agree. The case is not an equity action and should be transferred to the Court of Appeals.

Appellee in this case proceeded under Code Ann. § 72-401 which authorizes a municipal court to determine the existence of and abate nuisances. It is the settled law in Georgia that where a party elects to proceed under this Code section, it is an action at law. Attaway v. Coleman, 213 Ga. 329 (99 SE2d 154) (1957). Code Ann. § 72-301 served as an evidentiary standard only, and its application did not convert the proceeding into an equitable one.

No constitutional attack was made by appellant in the trial court, and the failure to raise the issue there precludes consideration of the alleged error on appeal. Zirkle v. State, 235 Ga. 289 (219 SE2d 389) (1975); Carter v. Pruitt, 235 Ga. 204 (219 SE2d 114) (1975).

Transferred to the Court of Appeals. All the Justices concur.