Opinion
39876.
DECIDED JANUARY 24, 1963.
Action for damages. Murray Superior Court. Before Judge Davis.
J. Paxson Amis, James Maddox, for plaintiff in error.
Pittman Kinney, H. E. Kinney, Charles Pannell, contra.
Where as here it is established as the law of the case that the evidence adduced on the trial demands a verdict for the defendant and the defendant then makes a motion for a summary judgment based on the premise that under such evidence no genuine issue exists and that no other evidence will be presented on another trial, and where the plaintiff fails to take advantage of his opportunity to show that other evidence would be introduced on another trial, the defendant is entitled to a summary judgment.
DECIDED JANUARY 24, 1963.
This is the fourth appearance of this case before this court. See Hamby v. Hamby, 99 Ga. App. 808 ( 110 S.E.2d 133); 101 Ga. App. 681 ( 115 S.E.2d 411); and 103 Ga. App. 826 ( 121 S.E.2d 169). On the first appearance it was held that the evidence demanded a verdict for the defendant and that the trial court erred in overruling his motion for new trial on the usual general grounds. On the second appearance the judgment sustaining the defendant's general demurrer to the petition was reversed. This demurrer was filed before the first trial but was not ruled upon until after the first appearance of the case before this court. On the third appearance of the case before this court it was held that the evidence adduced on the second trial did not authorize a verdict for the plaintiff, and the judgment overruling the defendant's motion for new trial on the usual general grounds was reversed. Thereafter, the defendant filed a motion for summary judgment attaching thereto as exhibits the briefs of evidence adduced on the first two trials and reciting the judgments of this court to the effect that under such evidence a verdict for the plaintiff was not authorized. The motion for summary judgment was also based on the premise that on a third trial the evidence would be no different from that adduced on the first two trials. The trial court, after issuance of a rule nisi and hearing, sustained the motion for summary judgment and the plaintiff assigns error on such judgment adverse to him.
The motion for summary judgment was based on the pleadings and the evidence adduced on the prior trials, the judgments of this court and the affidavit of counsel for the defendant that the evidence on another trial would be no different from that adduced on the first two trials. On the hearing of the motion for summary judgment no showing was made that any additional or different evidence would be adduced on a third trial and the motion was not, according to the record, controverted in any manner.
In support of his position, that the trial court erred in granting the summary judgment, the plaintiff contends that the second appearance of the case before this court (on demurrer), established the law of the case and that if he proved his case as laid a verdict for him would be authorized, and that a comparison of the petition as amended and the testimony of the parties would demand a finding that every material allegation of the petition was proved. The plaintiff further contends that the ruling on the third appearance of the case before this court, where it was held that the evidence on the second trial did not authorize a verdict for the plaintiff, is not the law of the case because the court did not then follow the law of the case as established on the second appearance when the petition was held to be good as against general demurrer. The same contentions were made on the third appearance of the case before the court ( 103 Ga. App. 826, 833) and it was there pointed out why such contentions were not meritorious, and such holding also became the law of the case.
Under the record in the case the defendant was entitled to a summary judgment, for there was no genuine issue of fact remaining in the case after each side had an opportunity to present his case, and as shown above the plaintiff was not entitled to recover. See Studstill v. Aetna Cas. c. Co., 101 Ga. App. 766 ( 115 S.E.2d 374); Scales v. Peevy, 103 Ga. App. 42 ( 118 S.E.2d 193).
Judgment affirmed. Frankum and Jordan, JJ., concur.