LESSONS FROM TRANSFER ORDERS 2001-2003

Constitutional Question

Jurisdiction of Supreme Court only if involves construction of a treaty or Constitution of the State or US and not draw into question constitutionality of law ordinance or Constitutional provisions 1983 Consti. Art. VI, Sec. VI, Par. II

There is no jurisdiction in the Supreme Court if the trial court did not distinctly rule on the constitutional issue.S02D1637 Santana v. Georgia Power Co. 269 Ga 127 (1998) S02A1471 Georgia Bd. of Dentistry v. Pence 223 Ga. App. 603 (1996)

A constitutional challenge must be made at the first opportunity. S02D1634 Kolokouris v. State 271 Ga. 597 (1) (1999).

The constitutionality of a criminal statute cannot be raised for the first time in a motion for new trial or motion in arrest of judgment.

Administrative rules and regulations are not laws of state within constitutional questions jurisdiction. S02D1239 Brosnan v. Undercofler 220 ga 239 (1964) s02A1134 Senase v. State, 258 Ga. 592 (1988)

A Worker's Compensation Board decision is not a law for purposes of the constitutional question jurisdiction of the Supreme Court.

The Supreme Court will not take a case if it previously resolved a similar constitutional issue. S02A1888,

The Supreme Court generally does not have jurisdiction of cases arising under 42 U.S.C. §1983.S01A0864 Kroupa v. Cobb County 262 Ga. 451 (1992)

The Supreme Court does not have jurisdiction when all that is required is application of unambiguous provisions to facts of the specific case. S02A0975 Zepp v. Mayor and Council of the City of Athens 255 Ga. 449 (1986)

The construction of the double jeopardy clause of U.S. and GA. Constitutions falls within unambiguous constitution provisions. Equal protection is also a plain and unambiguous constitutional provision. Issues related to violation of 4th amendment and ineffective assistance guaranteed by 6th Amendment of the U.S. Constitution and violation of GA Constitution Art. I,§ I, ¶XIII (search, seizure) require only application of well-settled principles.

Title to Land

For Supreme Court title to land jurisdiction, the appeal must involve an action at law in which the plaintiff asserted a presently enforceable legal title against possession by the defendant for recovery of land. S01A1084 Graham v. Tallent 235 Ga.47 (1975)

An action to set aside deed is usually not in Supreme Court jurisdiction because opposing parties are not claiming ownership to the same property. S03A0253 Graham v. Tallent 235 Ga. 47 (1975)

An action to clear title of the interest in a deed to secure debt is not an action at law in which plaintiff asserts a presently enforceable legal title against possession of the defendant for recovery of land. The issue of the validity of a deed to secure debt is not title to land.

A boundary line dispute is not title to land. S01A0432 Beauchamp v. Knight 261 Ga 608 (1991)

An appeal of a writ of possession is not title to land. S01A0825 Jordan v. Atlanta Neighborhood Housing Servs., Inc. 251 Ga. 37 (1983)

Easements are less than fee simple title so appeals relating to easements are not title to land actions. S02A0346 State v. Ashmore 236 Ga. 401 (1976) Krystal Co. v. Carter 256 Ga. 43 (1986)

Obstruction of a prescriptive easement is not a title to land action. S01A0672 Carter v. Kinman 231 Ga 759 (1974)

Condemnation is not title to land. S02A0693 G

Wrongful foreclosure actions are not title to land. S02A1576 Graham v. Tallent 235 Ga. 47 (1975) A motion to set aside an in rem foreclosure sale of property does not qualify as a title to land case.

A motion to set aside a tax sale in which issues involved were the propriety of the tax sale procedures is not title to land.

A suit to enforce an oral contract to sell land does not fall within the title to land jurisdiction.

Extraordinary Remedies

Extraordinary remedies include mandamus, prohibition, and quo warranto. Quo warranto inquires into the right of a person to the public office for which the person is performing duties.

Extraordinary remedies do not include:

Declaratory judgment or injunctive relief; Injunction: S02A1464

An extraordinary motion for new trial;S02D0720 Spence v. Miller 176 Ga. 96 (1932)

An extraordinary motion to vacate and set aside sentence; and S02D1266 Spence v. Miller 176 Ga. 96 (1932)

A writ of Error Coram Nobis (which is like an extraordinary motion for new trial). S02A0096 Spence v. Miller, 176 Ga. 96 (1932)

Equity

The Supreme Court equity jurisdiction is involved if the merits or propriety of equitable relief are at issue. S02D1582 Beauchamp v. Knight 261 Ga. 608 (1991) & Warren v. Board of Regents 272 Ga. 142 (2000).

Equitable relief does not involve the Supreme Court's jurisdiction if the underlying issue is a legal one. S02A0759 Redfearn v. Huntcliff Homes Assn , 271 GA 745 (1999)

Equitable relief is ancillary to resolution of legal issue on appeal. S02A0148 Lee v. Green Land Co. 272 Ga. 107 (2000)

Mutual mistake had equitable origins, but has been assimilated into law and therefore such an issue poses a legal question. S02A0102 Redfern v. Huntcliff Homes Assn. 271 Ga. 745 (1999)

A specific performance action is not within the Supreme Court's equitable jurisdiction if the specific issue in case is a question of law S03A0389 Lee v. Green Land Co., Inc. 272 ga. 107 (2000)

The defense of laches will not by itself invoke equity jurisdiction.

An unjust enrichment claim is legal in nature. S02A0417 Smith v. McClung 215 Ga. App. (1994)

An appeal of attorney fees belongs in COA. S01A1238 Haralson County v. Kimball 243 Ga. App. 559 (2000)

Fraud, rescission, and damages are not equitable issues. S02A1812 Redfearn v. Huntcliff Homes, INc. 271 Ga. 745 (1999) Akins v. Couch 271 Ga. 276 n. 1 (1999)

Divorce and Alimony

Motion to recuse in divorce action does not fall within divorce and alimony jurisdiction. S02D1406 Stevens v. Myers 190 Ga. App. 61 (1989)

Recovery of child support not arising from final decree of divorce not in divorce and alimony jurisdiction. S01A1085 O'Quinn v. O'Quinn, 217 Ga. 431 (1961)

Post-divorce proceedings in which issue of only child custody is not within Supreme Court jurisdiction. S02D1403 Ashburn v. Baker 256 Ga 507 (1986)

Contempt to enforce child support of decree from foreign state not divorce within meaning of constitution.S03D0852 Guest v. Guest 146 Ga. App. 512 (1978)

Appeal of order granting custody and setting child support not within Supreme Court jurisdiction if it did not arise out of a marriage or final divorce decree. S02D0198 Eskew v. Eskew, 199 Ga. 513 (1945).

Murder Cases - Death Penalty could or was imposed.

O.C.G.A. §15-5-3 provides that Supreme Court does not have jurisdiction of armed robbery and kidnaping in which death penalty has not been imposed S02A1007, S02A1513.

If the indictment was murder, but defendant pled to manslaughter which was accepted, not within Supreme Court jurisdiction.

Voluntary manslaughter and aggravated stalking are nota crimes in which the death penalty can be imposed.S02A1676 Mika v. State, 196 Ga. 473 (1943)

No jurisdiction over involuntary manslaughter. S03A0221 Mika above.

Construction of a Will

Orders from the probate court that do not involve the validity or construction of a will itself not within Supreme Court jurisdiction. S03A0301 In re Estate of Lott 251 Ga. 461 (1983)

Court order concerning appointment of a successor trustee for a testamentary trust established by a will does not involve construction of a will. S02A0445 Darnell v. Tate 208 Ga. 23 (1951).

An action to enforce a settlement which was the result of a caveat to the will is not with Supreme Court jurisdiction.

Appeal of probate court order determining the sole heir at law of the decedent did not involve the validity and meaning of a will so not within Supreme Court jurisdiction. S01D1455 Goodman v. Hammonds 224 Ga. App 387 (1) (1997)

Habeas Corpus

A motion filed in a criminal case instead of filed separately and not filed in the county of incarceration is not a habeas corpus case.S03A0694