Kitchings v. Hennessee

MacIntyre, J. 1. The case of Lewenstein v. Brown, 200 Ga. 433 (37 S. E. 2d, 332), decided that: “The Board of Zoning Appeals of Fulton .County has no authority to grant permission for the erection of an apartment house on property that has been zoned for residence purposes only.” The original judgment in the Lewenstein case, together with the questions raised on the motion for a rehearing which was denied February 21, 1946, are controlling adversely to the defendant in error in the instant ease. 2. Counsel for the defendant in error desires to question and review the decision in Lewenstein v. Brown, supra, for the purpose of having the same modified or overruled, and presented in his brief an express written request that we certify the question to- the Supreme Court. The questions involved having been recently decided by the Supreme Court, and this court being of the opinion that the decision should not be overruled, we respectfully refuse to certify such question to the Supreme Court. Code, § 24-3645; Rhodes v. Elberton & Eastern Ry. Co., 16 Ga. App. 426 (85 S. E. 611). 3. The judge of the superior court erred in overruling the certiorari. Judgment reversed. Broyles, G. J., and Gardner, J., concur. *849 Heymwn, Howe,ll & Heyman, for plaintiffs in error. Kelley & Hamrick, John L. Westmoreland, contra.