88 Ga. App. 664 | Ga. Ct. App. | 1953
Lead Opinion
In order to shorten this opinion and avoid duplication of citations we first wish to concede certain propositions of law set forth in the dissenting opinion. We recognize that the filing of a general demurrer is a waiver of process and defective process. The writer concedes that the filing of a general demurer together with a demurrer directed at the lack of process or defective process is a waiver of process and defective process unless the general demurrer is filed subject to the demurrer directed at the lack of process, and such latter demurrer supersedes the general demurrer so as to reach the question of process before the general demurrer is passed on. Other members of this court concurring in this opinion make this second concession merely for the sake of argument and of the decision of this case because, whether the second proposition is correct or. not, it would not affect the conclusion in this case. We all recognize also that a former ruling on a general demurrer going to the merits is a bar to a subsequent action on the same cause of action. We also recognize that, where a bill of exceptions is-dismissed and the judgment of the trial court stands unreversed and unchanged, the judgment of the trial court is the law of the case.
The crux of this case is this: Where the trial court sustains one general demurrer on its face apparently going to the merits of the case, and also at the same time sustains other demurrers directed at lack of legal process, and on appeal from that judgment this court interprets the trial court’s judgment as not being a ruling on the general demurrer to the merits, but one dismissing the action for lack of process, and dismisses the writ of error because the plaintiff below rendered the technical dismissal moot because he had re-sued his case—does the unreversed judgment of the trial court become the law of the case to the effect that the action was dismissed on its merits, or does the judgment of
The court erred in sustaining the plea of res judicata and in dismissing the action.
Judgment reversed.
Dissenting Opinion
dissenting. A statement of facts precedes the majority opinion, but, in order that my view of this’case may be clearly understood, I will restate some of the pertinent facts in 'the course of what I have fo say. The judgment here excepted to was rendered in the suit in the City Court of Athens, which suit was filed after, but on the same day, the judgment was rendered dismissing the action in the Superior Court of Clarke County by sustaining the defendant’s general demurrer thereto. Both suits were between the same parties and on the same cause of action. After the plaintiff’s suit in the superior court was dismissed, and after he filed this suit in the City Court of Athens, he sued out a writ of error to the Court of Appeals, excepting to "the order sustaining the general demurrer of the defendant to the petition as amended,” in the superior-court case. A copy of that general demurrer appears in the statement of facts in this case, ground 1 of same being that the petition as amended failed to state a cause of action against the defendant; and grounds 2 and 3 are to the effect that no process was issued on the original petition, that the process issued under order of the court upon amendment, after the return term, was null and void, and that the petition, having no valid process issued in connection therewith, is null and void and does not constitute a valid suit against the defendant.
After hearing and considering this evidence, the Judge of the City Court of Athens sustained the plea of res judicata and dismissed the plaintiff’s suit. The plaintiff excepted to this judgment.
When the defendant appeared and filed a general demurrer to the suit in the superior court on the ground (1) that the petition failed to set out a cause of action, it waived the irregularities of process, or the absence of process, which were complained of in grounds 2 and 3 of the demurrer. Code § 81-209 provides: “Appearances and pleading shall be a waiver of all irregularities of the process, or of the absence of process, and the service thereof.”. The filing of the general demurrer, to the effect that the petition failed to set out a cause of action, amounted to a plea to the merits of the case and was such an appearance as to waive defects in or absence of process. Lyons v. Planters Loan & Savings Bank, 86 Ga. 485 (1) (12 S. E.. 882, 12 L. R. A. 155); Southern Ry. Co. v. Cook, 106 Ga. 450 (3) (32 S. E. 585); Emmett & Co. v. Dekle, 132 Ga. 593 (1) (64 S. E. 682); Wilson v. City Council of Augusta, 165 Ga. 520 (141 S. E. 412); Bower v. Avery, 172 Ga. 272 (4) (158 S. E. 10); Carter v. Smith & Sons, 5 Ga. App. 804 (63 S. E. 932).
The demurrer to the suit in the superior court, between the parties here involved, like the demurrer in the Wilson case, was one paper, the first ground of same being that the petition failed to set out a cause of action, and the other twoi grounds going to the matter of process. No question of jurisdiction was raised by the demurrer. Code § 81-503 is as follows: “If a defendant shall appear and plead to the merits, without pleading to the jurisdiction, and without excepting thereto, he shall thereby admit the jurisdiction of the court.” As pertinent to this point, also see Carter v. Smith, 5 Ga. App. 804, supra.
The question as to process was waived by the first ground of demurrer, which went to the merits of the case. The order of the court sustained the general demurrer and dismissed the petition. That judgment has not been reversed. It was excepted to, and error was assigned in the bill of exceptions on the sustaining of the general demurrer, but the writ of error was dismissed. Almand v. Northern Assurance Co., Ltd., 87 Ga. App;. 193 (73 S. E. 2d 101).
A former ruling on a general demurrer going to the merits of the case is a bar to a subsequent suit on the same cause of action. Smith v. Bird, 189 Ga. 105 (5 S. E. 2d 336) ; Revels v. Kilgo, 157 Ga. 39 (121 S. E. 209); Sudderth v. Harris, 51 Ga. App. 654 (181 S. E. 122); Fain v. Hughes, 108 Ga. 537 (33 S. E.
Applying these principles of law to the facts of the present case, where it appears that the first ground of demurrer in the former suit, to wit, that the petition failed to state a cause of action, was sustained, and this ruling was not reversed on appeal, but the writ of error was dismissed (Almand v. Northern Assurance Co., Ltd., supra), the judge of the city court did not err in sustaining the plea of res judicata. While it was stated in the decision in 87 Ga. App. 193 that the writ of error was dismissed without prejudice to the prosecution of the present renewed action, the opinion in that case shows that such statement was made only with respect to the rulings on the demurrers pointing out a want of valid process in the former suit, i.e., grounds 2 and 3, and nothing was mentioned concerning the judgment of the superior court sustaining the first ground of the demurrer, to the effect that the petition failed to state a cause of action. So, when the writ of error was dismissed, it left the judgment of Clarke Superior Court, sustaining the general demurrer, standing unreversed, and that judgment bars the present suit on the same cause of action.
Of course, if this court had reversed the judgment of the superior court, or if that judgment had not been one going to the merits of the case, then we would have an entirely different proposition from the one presented by the record in this case. But I do not believe that this court can, by what is termed construction, render invalid the unreversed judgment of the, trial court, which, under the law and the facts, was necessarily rendered on the merits of the case. I think that this is true, although this court, in dismissing the writ of error gave as its reason for doing so that the suit in the superior court was dismissed on demurrer for a defect not going to the merits. The judgment on the general demurrer in the superior court was, in fact and in law, untouched by the judgment of this court dismissing the writ of error.
I am of the opinion that the Judge of the City Court of Athens did not err in sustaining the plea of res judicata and in dismissing the plaintiff’s suit in that court. Judge Worrill concurs in my view of this case as expressed in this dissent.