Opinion
39947.
DECIDED FEBRUARY 26, 1963.
Action for damages. Fulton Superior Court. Before Judge Tanksley.
Hugh Head, Jr., for plaintiff in error.
T. J. Long, Ben Weinberg, Jr., contra.
A judgment granting a motion by the defendants for a summary judgment (based on the petition, answer and depositions), does not establish the law of the case with reference to the defendants' demurrers (which have not been ruled upon), so as to prevent the defendants from thereafter making an oral motion to dismiss the petition in the nature of a general demurrer after the judgment granting the summary judgment has been reversed.
DECIDED FEBRUARY 26, 1963.
This is the second appearance of this case before this court. For a complete statement of the pleadings see Sanders v. Alpha Gamma Alumni Chapter, 106 Ga. App. 137 ( 126 S.E.2d 545). Suffice it to say that the plaintiff is suing to recover damages resulting from injury sustained when she walked into a glass panel separating a room from a patio on the defendants' premises. On the first appearance of this case before this court the judgment granting the defendants a summary judgment based on the petition, answer and depositions was reversed. Thereafter, the defendants made an oral motion to dismiss the plaintiff's petition upon the ground that such petition failed to set forth a cause of action, and the plaintiff now assigns error on such judgment adverse to her.
1. The plaintiff does not contend that the trial court erred in sustaining the defendants' oral motion to dismiss the petition because the petition set forth a cause of action, but rather contends that under the established law of the case the trial court erred in sustaining such oral motion to dismiss the petition. This contention is based upon the fact that the bill of exceptions on the first appearance of the case before this court stated in part: "(demurrers filed by defendants were submitted by agreement of both parties but were not passed on by the court)", and because the trial court necessarily, in effect, overruled the defendants' demurrers before he proceeded to rule upon the motion for summary judgment. In support of such position the plaintiff cites the cases of Todd v. Morgan, 215 Ga. 220 ( 109 S.E.2d 803); and Southview Cemetery Assn. v. Hailey, 199 Ga. 478, 483 ( 34 S.E.2d 863). Such cases are not authority for the contention made by the plaintiff, and a comparison of such cases with the situation here presented will show that the last cited case is authority to support the proposition that where a judgment is limited to one specific ground which of necessity excluded other grounds and such judgment is erroneous the other grounds which (if considered) might result in an affirmance will not be considered since they were not passed upon by the trial court.
Where a motion for summary judgment by the plaintiff has been granted by the trial court, and general demurrers were submitted for judgment, it amounts to a ruling that the petition was not subject to general demurrer. See Wells v. Wells, 216 Ga. 384, 385 ( 116 S.E.2d 586). In the present case, however, the defendants', not the plaintiff's, motion for summary judgment was erroneously granted and such judgment did not amount to a ruling that the defendants' demurrers were without merit, and as pointed out on the first appearance of this case before this court, supra, a judgment granting a motion for summary judgment to the defendants based on the petition, answer and depositions, will not be affirmed even though the plaintiff's petition itself was subject to general demurrer where the whole record shows that the summary judgment was erroneously granted.
2. The plaintiff also contends that the defendants have abandoned the demurrers by not filing a cross-bill of exceptions when the case was first before this court. "Where parties go to trial upon the merits of a case without calling the court's attention to demurrers filed to the pleadings, and without insisting upon a ruling thereon, the defendant thereby waives any rights that he might have to a hearing on the demurrers, and the court does not err in treating them as abandoned. Chambers v. Harlan Fuel Co., 32 Ga. App. 199 ( 122 S.E. 802); Americus Grocery Co. v. Brackett, 119 Ga. 489 (7) ( 46 S.E. 657); Wilkes v. Carter, 149 Ga. 240 ( 99 S.E. 860). But see, in this connection, Kelly v. Strouse, 116 Ga. 872, 873 (5a) ( 43 S.E. 280); Waldrop v. Wolff, 114 Ga. 610, 613 (3) ( 40 S.E. 830); Grant v. Grant, 202 Ga. 40 (2) ( 41 S.E.2d 534)." Sunbrand Supply Co. v. Garment Finishing Equipment Corp., 99 Ga. App. 72 ( 107 S.E.2d 680). A case does not go to trial when the defendants make a motion for summary judgment, and the defendants did not abandon or waive any demurrers so as to establish the law of the case that their oral motion to dismiss in the nature of a general demurrer could not be considered.
The judgment complained of was not error for any reason assigned.
Judgment affirmed. Frankum and Jordan, JJ., concur.