Opinion
22130.
SUBMITTED SEPTEMBER 11, 1963.
DECIDED OCTOBER 10, 1963.
Action for damages. Fulton Superior Court. Before Judge Pharr.
Cullen M. Ward, William W. Daniel, for plaintiff in error.
Latimer Allen, A. C. Latimer, contra.
The order of the trial court sustaining the oral motion of defendants to dismiss plaintiff's petition recited that "counsel for the plaintiff stated in open court and now vigorously urges upon the court that the action is a suit in tort under Code § 105-1207, and having taken that position in open court, the petition as amended must stand or fall upon that basis. American Oil Co. v. Roper, 64 Ga. App. 743." See also Orkin Termite Co. v. Duffell, 97 Ga. App. 68 (110 S.E.2d S.E.2d 629); Rhine v. Sanders, 100 Ga. App. 68 ( 110 S.E.2d 128). The plaintiff in his brief filed in this court takes the same position, insisting that the action is in tort against defendants for maliciously procuring the breach of a contract in which plaintiff had an interest. The election of plaintiff to proceed in tort removed all equity from the case and leaves only an action at law for money damages of which the Court of Appeals and not this court has jurisdiction. Code Ann. § 2-3704, 2-3708; Miller v. Ray, 208 Ga. 27 (1) ( 64 S.E.2d 449); Gay v. Lewis, 215 Ga. 317 (1) ( 109 S.E.2d 646); Hudon v. North Atlanta, 219 Ga. 179 ( 132 S.E.2d 74).
Transferred to the Court of Appeals. All the Justices concur.