Opinion
19240.
ARGUED FEBRUARY 13, 1956.
DECIDED APRIL 9, 1956.
Injunction, etc. Before Judge Atkinson. Chatham Superior Court. November 10, 1955.
Oliver, Davis Maner, for plaintiff in error.
Frank O. Downing, contra.
It was not error to deny the motion to dismiss the petition in this case.
ARGUED FEBRUARY 13, 1956 — DECIDED APRIL 9, 1956.
This is the second appearance of this case before this Court. See Cain v. Phillips, 211 Ga. 806 ( 89 S.E.2d 163), where a full statement of facts will be found. This court in the former appearance of the instant case held in effect that certain amendments to the petition were substantial ones, and that, since the defendants had failed to renew their motions to dismiss after the last amendment was filed, nothing was presented for decision by this court and the judgment denying the motions to dismiss was affirmed. After this judgment was rendered and before the remittitur was entered in the trial court, the defendants did renew their motions to dismiss by filing papers which were copies of the motions previously filed. The trial judge again denied the motions to dismiss, stating that he should not take cognizance of these grounds of the motions to dismiss because they were too late and had already been ruled upon. To this judgment, the defendants excepted and assign the same as error to this court.
It will appear from the above statement of facts that the grounds of the motions to dismiss here insisted upon have already been ruled upon by the trial court. That judgment was affirmed by this court in Cain v. Phillips, 211 Ga. 806 ( 89 S.E.2d 163). While it is true that the opinion in Cain v. Phillips, supra, states that, if the motions were still insisted upon after the amendments were filed, they should have been renewed, and that, since they had not been renewed, there was nothing for decision by this court, the judgment of the trial court was still affirmed. This presents a different question than would have been presented if the bill of exceptions in the former appearance had been dismissed.
This court has held a number of times that, if a defendant by demurrer calls into question the sufficiency of a petition and the court renders a decision, whether right or wrong, holding that the petition sets out a cause of action, the defendant is precluded from again challenging the sufficiency of the petition so long as that decision stands unreversed. See, in this connection, Georgia Northern Ry. Co. v. Hutchins Jenkins, 119 Ga. 504 ( 46 S.E. 659); Sims v. Georgia Ry. c. Co., 123 Ga. 643 ( 51 S.E. 573); Turner v. Willingham, 148 Ga. 274 ( 96 S.E. 565); Kelly v. Strouse, 116 Ga. 872 ( 43 S.E. 280). In the instant case, we have a decision by the trial court, holding the petition to set out a cause of action, that stands unreversed. Under the cases above cited, the defendants cannot again attack the sufficiency of the petition by renewing their motion to dismiss. Accordingly, the judgment of the trial court denying the motions to dismiss was not error.
Judgment affirmed. All the Justices concur.