Leake v. City of Atlanta

Deen, Chief Judge. The prior holding of this court in Leake v. City of Atlanta, 146 Ga. App. 57 (245 SE2d 338) (1978), has been reversed on certiorari by the Supreme Court (243 Ga. 20). Appellant, however, has filed a motion in this court contending that the ruling of the Supreme Court eliminated the theory of nuisance from the case, but it did not pass upon the remaining two counts of her complaint which alleged (1) that Mr. Leake’s death was caused by negligence of the city through its agents and employees in the conduct of its ministerial functions, and (2) that the Supreme Court did not pass upon Count 3 of the complaint which alleged that she would be denied equal protection and due process of law if the defendant were granted immunity for its negligent acts. In our opinion we held that the city was not engaged in a ministerial function and we adhere to that ruling. As to the second issue raised in the motion, we find that it was never raised as an enumeration of error nor was it argued as a part of one of appellant’s enumerations of error. As this contention is now raised for the first time, it comes too late. The prior judgment in this case is vacated and the judgment of the trial court is affirmed. Judgment affirmed. Smith and Banke, JJ., concur.