115 Ga. 35 | Ga. | 1902
This case was here at the October term, 1899. See 109 Ga. 579-591. It was then returned to the lower court for another hearing upon certain exceptions to an auditor’s report,, filed in behalf of the Lumber Company. At the trial now under review, the case was, by consent of the parties, submitted to the presiding judge without the intervention of .a jury, and resulted in a decree in favor of the company. Russell and his wife thereupon sued out a bill of exceptions in which complaint is made of this-outcome of the trial, and in which error is assigned upon various-rulings made during the progress of the hearing below. There is-also before us a cross-bill sued out by the Lumber Company, in which it excepts to certain rulings favorable to its opponents.
It appears that at a previous hearing of the case, the company voluntarily withdrew its 7th exception of law. This fact was overlooked by the judge before whom the case again came on for trial, and he adjudged that in so far as this exception related to “the right-of the plaintiff to retain the possession of the said mill for a period of five years,” it was well taken. While, for the reason just indicated, he should have ignored this exception, his ruling thereon had no practical effect upon the outcom e of the case. The question thereby presented was also raised by the 2d, 3d, and 8th exceptions of law, and this court, in passing thereon, had explicitly held, as matter of law, that,under the express terms of the contract between the Lumber Company and the Russells, “ the company, at its option, was entitled to keep possession of the mill and operate it for the term of five years from the date of the last writing, if it complied with its undertakings therein expressed.” In other words, this was a matter which was res ad judicata.
Judgment on main MU of exceptions reversed; on cross-Mil affirmed.