Mitchell v. Evans
26 S.E.2d 384
| Ga. Ct. App. | 1943

1. "Where a defense is stricken on demurrer, it is error for the court to admit evidence tending to establish the defense over timely objection." Mitchell v. Evans, 67 Ga. App. 453 (3) (20 S.E.2d 782).

2. No reversible error appears in special grounds 1 and 2.

3. There is no error shown by the general grounds.

DECIDED JUNE 8, 1943. REHEARING DENIED JULY 3, 1943.
1. This is the second appearance of this case here. (See Mitchell v. Evans, supra.) In dealing with the case on the previous occasion the court set out paragraphs 7, 8, and 9 of the answer, which had been stricken on demurrer, to which judgment no exceptions were filed. On the former trial the court admitted evidence to establish the defense which had been stricken on demurrer. In dealing with that question this court ruled as set forth in headnote 1 of the instant case. In this case (grounds 3 and 4 of the motion) the court again, over objection of the plaintiff, admitted evidence in support of the stricken allegations of the answer. The admission of this testimony was in violation of the law of the case, and for this reason the judgment is reversed. We have examined the record on which the former opinion was based, and the evidence illegally admitted on the former trial was substantially the same as that to which objection was made on the trial now under consideration. For this reason we are constrained to grant a reversal.

2. Under the whole record there does not appear any reversible error in special grounds 1 and 2.

3. Since there is likely to be another trial, and since under the pleadings and the evidence there were issues proper for the jury to determine under the general grounds, and there being no reversible error pertaining thereto, we will not further comment on the general grounds.

Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur. *Page 607