The legal question for decision in the present case is not within the jurisdiction of the Supreme Court under the Constitution, Art. VI, Sec. II, Par. IV (Code Ann. 2-3704) and the writ of error is remanded to the Court of Appeals.
L. O. Benton, Jr., and Mrs. Rosalind Benton Fitzpatrick filed their response in a condemnation proceeding by the State Highway Department, wherein it was alleged that the declaration of taking "is dated the 21st of August, 1964 and was filed in this court August 25, 1964, . . ." It was alleged that: The petition is presented and filed within 30 days of the date of service, as provided by Ga. L. 1962, Ex. Sess., Sept.-Oct., p. 37 (Code Ann. Supp. 36-1303). The respondents seek to vacate and set aside the declaration of taking and the judgment and order of the court entered thereon, dated August 21, 1964. The property sought to be acquired is not to be used for State-aid road purposes, but is, in fact, being condemned for use by the Southern Natural Gas Company, and the State Highway Department has no power to condemn land on behalf of the Southern Natural Gas Company. In attempting to acquire the described property the State Highway Department is improperly using its powers under the Act of 1961 (Ga. L. 1961, pp. 517-529), as amended, and is invoking the Act beyond the privileges conferred therein, in that it seeks to acquire property for another use than for State-aid road purposes. The prayers were: that the petition of the State Highway Department be stricken and dismissed, in that it states no cause of action under the statutes upon which it is based; that the declaration of taking be set aside, vacated, and annulled; that the so-called award be declared null, void, and of no effect; that the State Highway Department, its agents, officers, and employees, and any person purporting to act pursuant to any authority of the State Highway Department, be restrained and enjoined from taking possession of, or in any manner interfering with, the lands of the respondents, or any right of the respondents therein; for process, rule nisi, and other relief.
Service was acknowledged on this petition by counsel for the State Highway Department on September 10, 1964, and on the same date the judge issued a rule nisi requiring the State Highway Department to show cause on September 18, 1964, why the prayers of the petition should not be granted. On October 13, 1964, the judge entered an order as follows: "The foregoing motion coming on for a hearing, and after hearing the evidence and argument of counsel, the same is hereby overruled and denied."
The respondents Benton and Fitzpatrick by writ of error excepted to the order overruling and denying the petition to vacate, annul, and set aside, and to the prior order granting possession of the property. In their bill of exceptions the respondents, through their counsel, certified that jurisdiction of the cause was in the Court of Appeals of Georgia, and not the Supreme Court of Georgia, because it is an action involving condemnation of property and the construction of a statute "and does not involve any question to which the exclusive jurisdiction is vested in the Supreme Court of Georgia."
On January 6, 1965, the Court of Appeals transferred the cause to this court, it being recited in the order that, "In addition to other equitable relief, it [the petition] seeks a restraining order and injunction against the State Highway Department of Georgia, . . ." and that "the prayers of the restraining order and injunction have not become moot by any manner whatsoever."
In the present case the owners of the land, desiring to contest the right of the State Highway Department to condemn the land described, filed their motion to vacate and set aside in the condemnation proceeding, as authorized by Ga. L. 1961, pp. 517, 520, as amended by Ga. L. 1962, Ex. Sess., Sept.-Oct., p. 37 (Code Ann. Supp. 36-1303). This motion prayed that the State Highway Department be temporarily and permanently restrained and enjoined from taking possession of, or interfering with, their land. No injunction was granted, and on the hearing the petition or motion was dismissed. The application for a supersedeas was denied. The prayers for injunction were therefore effectively and completely eliminated as an issue in the cause, since no assignment of error appears in the bill of exceptions on the refusal of the court to grant any restraining order. The assignment of error in the bill of exceptions involves only the question as to whether or not the State Highway Department had the right to condemn the described property.
"The test of a case as made by writ of error to the Supreme Court as to whether it is one in equity, and hence reviewable by the Supreme Court (Code Ann., 2-3704), is not what it might have been at any given time during its pendency in the trial court, but what remained in it and is brought here for review. Matters eliminated either by the parties or by order of the trial court constitute no part of the case in the Supreme Court. Cochran v. Stephens, 155 Ga. 134 (116 SE 303)
; Coats v. Casey, 162 Ga. 236 (133 SE 237)
; Benton v. Benton, 164 Ga. 541
, 543 (139 SE 68
); Jones v. Pierce, 192 Ga. 217
, 219 (14 SE2d 739
); Gilbert Hotel No. 22 v. Black, 192 Ga. 641 (16 SE2d 435)
; Overstreet v. Schulman, 203 Ga. 284 (46 SE2d 344)
; Anagnostis v. Alexandrou, 203 Ga. 752 (48 SE2d 521)
." Douglas-Guardian Warehouse Corp. v. Todd, 212 Ga. 791 (96 SE2d 275)
. See also Williams & Templeton v. Brewer, 211 Ga. 786 (89 SE2d 269)
; Simonton Construction Co. v. Pope, 212 Ga. 456 (93 SE2d 712)
; Pickett v. Ga. Fla. & Ala. R. Co., 214 Ga. 263 (104 SE2d 450)
; Taylor v. Murray, 215 Ga. 628 (112 SE2d 583)
; Lorenz v. DeKalb County, 215 Ga. 731 (113 SE2d 404)
. In Douglas-Guardian Warehouse Corp. v. Todd, 212 Ga. 791
, supra, a restraining order had been granted but there was an order dissolving the restraining order and no exception was taken to the order of dissolution.
The attack on the declaration of taking in the present case is not based on any provision of the 1962 amendment (Ga. L. 1962, Ex. Sess., Sept.-Oct., pp. 37-47, Code Ann. Supp. 36-1303) relating to Code 37-709, pertaining to fraud or bad faith. However, with proper pleadings and parties a judgment may be set aside in a court of law for fraud. Ford v. Clark, 129 Ga. 292 (1) (58 SE 818); Albright v. American Central Ins. Co., 147 Ga. 492 (1) (94 SE 561); Roberts v. Roberts, 150 Ga. 757 (105 SE 448).
The sole issue here is whether or not the condemnation of the property for the use intended was an improper use, abuse, or misuse of the powers conferred on the State Highway Department which might be set aside under Section 3, Subsections (b) and (c), of Ga. L. 1962, Ex. Sess., Sept.-Oct., pp. 37, 39 (Code Ann. Supp. 36-1303 (b and c)). This legal question is solely within the jurisdiction of the Court of Appeals under the facts of this case, and it is therefore ordered that the cause be, and it is hereby,
Remanded to the Court of Appeals. All the Justices concur.