Western & A. R. Co v. Bank

• Decision Date: 16 May 1906
• Citation: 54 S.E. 621,125 Ga. 489
• Parties: WESTERN & A. R. CO. v. THIRD NAT. BANK.
• Court: Georgia Supreme Court

54 S.E. 621

125 Ga. 489

WESTERN & A. R. CO.

v.THIRD NAT. BANK.

Supreme Court of Georgia.

May 16, 1906.

1. Appeal—Law of the Case—Effect of Decision on Appeal.

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 asthe 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.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4358-4368, 4461-4465.]

2. Same—Case at Bar.

In the former decision in this case (40 S. E. 1016, 114 Ga. 890) the trial judge was practically instructed to direct a verdict for the plaintiff in the event the evidence established the allegations of the petition and no sufficient defense appeared from the evidence of the defendant.

3. Same.

The plaintiff having established by proof the allegations of the petition, and there being no evidence of any defense to the action, the trial judge properly carried into effect the former decision of this court, and directed a verdict for the plaintiff; and his judgment, rendered in obedience to the decision of this court, will be affirmed.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; 3. H. Lumpkin, Judge.

Action by the Third National Bank of Atlanta against the Western & Atlantic Railroad Company. Judgment in favor of plaintiff. Defendant brings error. Affirmed.

Payne & Tye, Jno. L. Tye, and Chas. A. Read, for plaintiff in error.

Walter T. Colquitt, and Ben J. Conyers, for defendant in error.

COBB, P. J. The Third National Bank of Atlanta brought an action against the Western & Atlantic Railroad Company. The material allegations in the petition will be found in the opinion rendered when the case was before this court on a former occasion. See Third Nat. Bank v. W. & A. Railroad Co., 114 Ga. 890, 40 S. E. 1016. The headnote in the case was In the following language: "When a plaintiff's petition sets forth a particular state of facts and thereupon alleges liability on the part of the defendant, it must, if not challenged by demurrer, be treated as legally sufficient to support a recovery; and, if the plaintiff establishes by evidence all the material allegations of such petition, he is, nothing more appearing, entitled to a verdict." It was said in the opinion: "It appears from the brief of evidence that every material allegation of the plaintiff's petition was fully sustained by uncontradicted evidence; and as there was no defense in, except a denial of the allegations of the petition, a verdict for the plaintiff was demanded, the case having been proved as laid." There was cited, to support this proposition, Phillips v. Southern Ry. Co., 112 Ga. 197, 37 S. E. 418; and Flewellen v. Flewellen, 114 Ga. 403, 40 S. E. 301, and citations.

When this case was tried a second time, the defendant at the conclusion of the plaintiff's evidence made a motion for a nonsuit, which was overruled; and error is assigned upon this ruling. There was no error in overruling the motion for a nonsuit. On such a motion the only question is whether the evidence is sufficient in law to maintain the issue in fact made by the pleadings; and no exception can he taken to defects in the pleading upon a motion of this character. Kelly v. Strouse, 116 Ga. 873, 43 S. E. 280 (4b). There was no other motion made at the trial. The court directed a verdict for the plaintiff. The case is now here upon a bill of exceptions assigning error upon the direction of the verdict; the assignment of error being that neither under the pleadings nor the evidence is the plaintiff entitled to recover. Under the...