Opinion
15308.
NOVEMBER 16, 1945.
Mandamus. Before Judge Almand. Fulton Superior Court. August 1, 1945.
William G. McRae, for plaintiff. Harold Sheats and W. S. Northcutt, for defendants.
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.
No. 15308. NOVEMBER 16, 1945.
R. O. Rivers brought petition for mandamus absolute, against Hailey and others as Commissioners of Fulton County, to recover amounts alleged to be due him as deputy marshal of the Civil Court of Fulton County. A general demurrer to the petition was sustained. This court reversed the trial court in an opinion rendered on February 17, 1945 ( Rivers v. Hailey, 199 Ga. 38, 33 S.E.2d 310), holding that the plaintiff was entitled to recover amounts during the term for which he had been elected, or between the dates of February 1, 1933, and May 24, 1935, inclusive, at the salary fixed by the commissioners within said dates for the deputy marshals of said court.
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, 199 Ga. 38 (supra) that the plaintiff was entitled to recover a part of the salary claimed, the legal effect of the former opinion was to reverse the judgment of the lower court in part only, since the lower court had sustained the demurrer generally. A general demurrer attacks every item of substance in the pleadings of the opposite party, while a special demurrer goes to the structure only. This rule was stated by this court in Martin v. Bartow Iron Works, 35 Ga. 323, as follows: "A general demurrer enables the party to assail every substantial imperfection in the pleadings of the opposite side without particularizing any of them in this demurrer; but if he thinks proper to point out the faults, this does not vitiate it. A special demurrer goes to the structure merely, and not to the substance, and it must distinctly and particularly specify wherein the defect lies." Every allegation in the petition for salary alleged to be due the plaintiff was a matter of substance. The lower court having sustained the demurrer to every item of substance, it was proper for this court to indicate which, if any, of the several claims were valid obligations of the county, and which were not.
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, 1 Ga. 376; Hazlehurst v. Savannah, Griffin North Alabama Railroad Co., 43 Ga. 13; Lowe v. Burke, 79 Ga. 164 ( 3 S.E. 449); Tietjen v. Meldrim, 169 Ga. 678 (1) ( 151 S.E. 349); Calbeck v. Herrington, 169 Ga. 869 ( 152 S.E. 53); Pullen v. General American Credits, 186 Ga. 642 ( 198 S.E. 747). Where the judgment of the lower court is one sustaining a general demurrer, this court on review may, and we think should, follow the practice as stated in the decision of this court in Peoples Loan Co. v. Allen, 199 Ga. 537 ( 34 S.E.2d 811), where Justice Duckworth for the court stated: "Where a general demurrer is sustained by the trial court, the effect of such ruling is to adjudge that the petition is not good in any of its parts. . . If it be found by this court on review of such judgment that in some part of the petition a cause of action is set forth, the proper judgment should be one of affirmance in part and reversal in part, leaving the plaintiff at liberty to pursue his action for such relief as the allegations of the petition show him entitled to." In this connection, see also Herring v. Smith, 141 Ga. 825 ( 82 S.E. 132), Merchants Mechanics Bank v. Boyd Co., 143 Ga. 755 ( 85 S.E. 914), Blaylock v. Hackel, 164 Ga. 258 (4) ( 138 S.E. 333), Arteaga v. Arteaga, 169 Ga. 595 ( 151 S.E. 5), Terry v. Chandler, 172 Ga. 715 ( 158 S.E. 572), Thrasher v. Atlanta, 178 Ga. 521 ( 173 S.E. 817), O'Neal v. O'Neal, 176 Ga. 418 ( 168 S.E. 262), and Sutton v. Adams, 180 Ga. 48 ( 178 S.E. 315), where this court distinctly pointed out why it was error to sustain a general demurrer.
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, 27 Ga. 334. See also Thornton v. Lane, 11 Ga. 459; Norton v. Paragon Oil Can Co., 105 Ga. 466 ( 30 S.E. 437); Allen v. Schweigert, 113 Ga. 69 ( 38 S.E. 397); Burke v. Ledsinger, 115 Ga. 195 ( 41 S.E. 682); Lindsey v. Allen, 116 Ga. 810 ( 43 S.E. 49); Southern Railway Co. v. Phillips, 119 Ga. 146 ( 45 S.E. 967); Western Atlantic Railroad Co. v. Third National Bank of Atlanta, 125 Ga. 489 ( 54 S.E. 621); Southern Bell Tel. Tel. Co. v. Glawson, 140 Ga. 507 ( 79 S.E. 136); Ga. Ry. Power Co. v. Decatur, 153 Ga. 329 ( 111 S.E. 911); Elliston v. Atlantic States Warehouse Co., 163 Ga. 440 ( 136 S.E. 436); City of Atlanta v. Smith, 165 Ga. 146 ( 140 S.E. 369); McEntire v. John Hancock Mutual Life Ins. Co., 174 Ga. 158 ( 162 S.E. 134).
Judgment affirmed. All the Justices concur.