This exception cannot be entertained because the order excepted to was entered prior to the order dismissing the petition, which order was reviewed and reversed by this court in Looper v. Georgia So. Fla. Ry. Co., 213 Ga. 279, supra; and the union defendants not having sought a review of the order of January 29, 1957, by cross-bill of exceptions, it is too late now to except. Gaulding v. Gaulding, 210 Ga. 638 ( 81 S.E.2d 830); Carmichael Tile Co. v. McClelland, 213 Ga. 656 ( 100 S.E.2d 902). 2. Error is assigned on the order allowing the amendment to plaintiffs' petition of September 23, 1958.
Hence, the ruling previously made in the instant case by this court fixed the law of the case, and the Court of Appeals, like this court, is bound by that ruling. See Gaulding v. Gaulding, 210 Ga. 638 ( 81 S.E.2d 830), and citations. The judgment rendered by the Court of Appeals is therefore erroneous.
When this litigation was formerly before the Court of Appeals ( 94 Ga. App. 645, 96 S.E.2d 202), the exception was to a final judgment and each writ of error prosecuted to that court, or to this court, which assigns error on such a judgment brings under review all errors of law alleged to have been committed prior to the time it was issued; and if the complaining party is the defendant in the first writ of error, he should by cross-bill of exceptions assign error on all antecedent rulings adverse to him, and by his failure to then do so he waives his right to except later to them. Hodgkins v. Marshall, 102 Ga. 191 ( 29 S.E. 174); Gaulding v. Gaulding, 210 Ga. 638 (1) ( 81 S.E.2d 830), and the cases there cited. Since the exception to the judgment overruling the demurrers came too late to be considered, that ruling, whether right or wrong, became the law of the case.
pp.) § 6-903 (Ga. L. 1946, pp. 726, 735; 1953, Nov.-Dec. Sess., pp. 279, 280) and Code § 55-202, wherein the lower court refused to grant a temporary injunction, which is different from a review of a final judgment under Code (Ann. Supp.) § 6-701 (Ga. L. 1890-91, p. 82; 1946, pp. 726, 730; 1953, Nov.-Dec. Sess., pp. 440, 455). the defendants' (defendants in error) failure to except by direct bill or cross-bill of exceptions to the overruling of the general demurrer to the petition does not establish the law of the case to be that the petition alleges a cause of action, as contended by the plaintiff in error. See Code (Ann. Supp.) § 6-905 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 453); Mechanics' Traders' Bank of Rome v. Harrison, 68 Ga. 463; Hodgkins v. Marshall, 102 Ga. 191 ( 29 S.E. 174); Thompson v. Thompson, 124 Ga. 874, 875 ( 53 S.E. 507); Moody v. Cleveland Woolen Mills, 133 Ga. 741, 745 ( 66 S.E. 908); Williams Realty c. Co. v. Simmons, 188 Ga. 184, 185 (4) ( 3 S.E.2d 580); Gaulding v. Gaulding, 210 Ga. 638, 642 ( 81 S.E.2d 830); Cook County v. Thornhill Wagon Co., 186 Ga. 835, 836 ( 199 S.E. 117); Shoaf v. Bland, 208 Ga. 709, 710 ( 69 S.E.2d 258). And for the same reason the exceptions as to the rulings on the special demurrers are premature and will not be considered. Shoaf v. Bland, 208 Ga. 709 (supra); Ray v. Ray, 208 Ga. 733 (2) ( 69 S.E.2d 261); Malcom v. Webb, 209 Ga. 735 ( 75 S.E.2d 801); Roughton v. Thiele Kaolin Co., 211 Ga. 15 ( 83 S.E.2d 590). 2.
Where a bill of exceptions — assigning error on a judgment rendered June 27, 1953 (prior to passage of the act approved December 22, 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 453), abolishing exceptions pendente lite, and no exceptions pendente lite having been preserved), which judgment overruled a general demurrer to a petition for mandamus, seeking to compel the construction of an electric line to petitioners' home and, if necessary, the bringing of condemnation proceedings against adjoining landowners for a right-of-way to run the line — was dismissed by the Supreme Court as having been prematurely brought ( Jackson Electric Membership Corp. v. Mathews, 210 Ga. 171, 78 S.E.2d 514), such judgment became the law of the case in this respect. West v. Standard Accident Ins. Co., 176 Ga. 755 ( 168 S.E. 766); McFall v. Griffin, 209 Ga. 83 ( 70 S.E.2d 772); Gaulding v. Gaulding, 210 Ga. 638 ( 81 S.E.2d 830). Accordingly it was only necessary for the petitioners to prove the material allegations of the petition; and where the uncontroverted evidence supported the allegations of the petition, a verdict in favor of the petitioners was demanded. The trial court, therefore, did not err in denying the defendant's amended motion for new trial and in decreeing performance by the defendant as prayed in the petition.
The act of 1953, abolishing exceptions pendente lite, will not be given a retrospective operation as to orders and judgments entered prior to the effective date of the act, where one of the parties acquired substantial rights. Gaulding v. Gaulding, 210 Ga. 638 ( 81 S.E.2d 830); Hannah v. Kenny, 210 Ga. 824 ( 83 S.E.2d 1); Levin v. Myers, 211 Ga. 474 ( 86 S.E.2d 283). 2. It is argued that a new trial should have been granted upon the general grounds, because (a) the evidence shows conclusively that the plaintiffs were not entitled to any judgment for specific performance; (b) the evidence conclusively shows that the contract sought to be performed is not the contract originally entered into; (c) the evidence shows that there was no tender of the purchase price or waiver thereof by the defendant; (d) the evidence shows that the plaintiffs were unable to pay the purchase price; and (e) the verdict and judgment were erroneous.
We are of the opinion that these cases are in conflict with the clear import of Code Ann. § 6-701, as amended, which provides in part: "Where bill of exceptions is permissible, all judgments, rulings, or orders rendered in the case which are assigned as error, and which may affect the proceedings below, shall be reviewed and determined by the appellate court, without regard to the appealability of such judgment, ruling or order standing alone, and without regard to whether the judgment, ruling or order excepted to was final, or was subject to review by some other express provision of law contained in this section or elsewhere." See also Carmichael Tile Co. v. McClelland, 213 Ga. 656 (2) ( 100 S.E.2d 902); International Assn. of Machinists v. Street, 215 Ga. 27, 38 (1) ( 108 S.E.2d 796), reversed on other grounds 367 U.S. 740 ( 81 SC 1784, 6 L.Ed.2d 1141); Gaulding v. Gaulding, 210 Ga. 638 ( 81 S.E.2d 830); DuPree v. Babcock, 100 Ga. App. 767 (1) ( 112 S.E.2d 415). Accordingly, any decision of this court which is contrary to the view herein expressed will not be followed by this court because we are bound by the plain mandate of the statute, and in the event of a conflict between a statute and a court decision, we are bound by the statute. Huguley v. Huguley, 204 Ga. 692 ( 51 S.E.2d 445); Stein Steel c. Co. v. Tate, 94 Ga. App. 517 ( 95 S.E.2d 437).