50 S.E.2d 105 | Ga. | 1948
1. The ground of demurrer assailing the petition for indefiniteness as to the character in which the defendant was sued, whether individually or as treasurer, was without merit.
2. As to the first two orders of the judge involved in this suit, the defendant treasurer was authorized to plead and prove in the mandamus proceeding any amounts due by the plaintiff to the county, as a defense to the amount claimed to be due in the mandamus proceeding. Consequently, the trial judge erred in striking the defendant's answer so pleading, so far as related to said first two orders.
3. However, as to the last order of the judge here involved, the answer set forth no valid defense, and was properly stricken on demurrer.
Counsel for the treasurer, plaintiff in error, insist that the "law of the case" rule "and the decision of this court as it appeared in 201 Ga. — clearly demands the reversal of the lower court in granting this mandamus absolute."
Attorneys for the plaintiff in the trial court, defendant in error, contend that, under the ruling in Walden v. Smith,
2. "A decision by the Supreme Court is controlling upon the judge of the trial court, as well as upon the Supreme Court when the case reaches that court a second time. The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case, even though the ruling has been disapproved by the Supreme Court in a case decided before the second appearance of the case in that court." Western AtlanticRailroad Co. v. Third National Bank of Atlanta,
(a) Under the principle above stated, the defendant, in conformity with the decision of this court in Walden v.Nichols,
3. However, as to the order for $1740, dated May 28, 1948, the rule stated in the preceding division does not apply, as that order was not part of the subject-matter of the proceeding reviewed in Walden v. Nichols, supra. Counsel for the defendant treasurer assert that as to such latter order the cited decision is "stare decisis," but since one Justice dissented, it is not thus binding on this court. In a later case, Walden v.Smith,
Judgment reversed in part, and affirmed in part. All theJustices concur, except Wyatt, J., who dissents from headnote 3and the corresponding division of the opinion, and Bell, J.,absent on account of illness.