36 S.E.2d 429 | Ga. | 1945
The lower court having sustained a general demurrer to the plaintiff's petition, and this court on review holding that the plaintiff could recover in part, it was not error for the trial court to give effect to the opinion of this court upon a subsequent trial. Except as held by this court on review, the plaintiff could not recover any amount on the trial. The plaintiff in error is bound by the former decision of this court as the law of the case.
Upon the return of the case to the lower court, Charlie Brown, commissioner, was substituted by proper order for I. Gloer Hailey. The case then came before the lower court for hearing on the remaining demurrers to the petition and the demurrers to the answer; and an order of the court was passed on these demurrers on May 19, 1945. Later a stipulation of facts was agreed upon by the parties, and the case was submitted to the court to be determined without a jury. On June 18, 1945, the court vacated the order of May 19, 1945, for inadvertent errors as to dates, and rendered a judgment overruling some of the demurrers to the petition and sustaining others; overruling some of the demurrers to the answer, and sustaining others; and granting the plaintiff's prayers for a mandamus absolute in part, and denying it in part, holding that the court was bound by the decision of this court in Rivers v. Hailey, supra, and giving effect to the decision of this court in that case. Exceptions pendente lite were filed by the plaintiff to the rulings on demurrers. A motion for new trial was overruled.
The plaintiff assigns error on the rulings adverse to him on the demurrers and on the overruling of his motion for new trial, and insists that this court exceeded its authority in limiting the plaintiff's right of recovery, when passing on the general demurrer, in the judgment rendered thereon on February 17, 1945; and that the judge of the superior court should not have followed the opinion of this court in that portion of the opinion which limited his right of recovery.
This court having held in Rivers v. Hailey,
Able counsel for the plaintiff in error appears to be confused as to what the judgment of this court should be in reviewing the lower court's judgment on a general demurrer. Where a judgment of the lower court is one overruling a general demurrer, this judgment must be affirmed if the petition sets forth a cause of action for any of the relief prayed. McLaren v. Steapp,
In Rivers v. Hailey, supra, it was held that the plaintiff might recover in part the salary alleged to be due him by the defendant. Otherwise, the judgment of the lower court in sustaining the demurrer was in effect affirmed. This court was not required by any rule of law to indicate what part of the plaintiff's petition alleged a cause of action, but in doing so an established practice of the court was properly followed. It is stated in 21 C. J. S., page 314, § 190-b: "An adjudication on any point within the issues presented by the case cannot be considered a dictum, and this rule applies as to all pertinent questions, although only incidentally involved, which are presented and decided in the regular course of the consideration of the case, and lead up to the final conclusion, and to any statement in the opinion as to a matter on which the decision is predicated." The opinion in Rivers v. Hailey, supra, was not obiter (as contended by counsel), but was a valid and binding judgment of this court, which was properly followed by the trial court.
Many decisions of this court to the effect that its judgments become the law of the case would preclude the plaintiff from any recovery in this case. "When a case is brought up to this court a second time, with no new facts to change substantially the view of it taken before, it only remains for this court to reaffirm its first judgment, by affirming generally the judgment of the court in attempting to enforce it." Sanderlin v. Sanderlin,
Judgment affirmed. All the Justices concur. *53