Opinion
17763.
SUBMITTED FEBRUARY 11, 1952.
DECIDED MARCH 11, 1952.
Ejectment. Before Judge Perryman. Lincoln Superior Court. December 1, 1951.
Earle Norman, and L. C. Groves, for plaintiffs in error.
Clement E. Sutton, contra.
1. The contention that an act of the legislature is unconstitutional, after the case has been tried, brought to this court, and reversed, can not be raised for the first time on the second trial.
2. It was not error to allow the amendment here in question after the remittitur of this court had been made the judgment of the trial court.
No. 17763. SUBMITTED FEBRUARY 11, 1952 — DECIDED MARCH 11, 1952.
This is the second appearance of this case before this court. See Williams v. O'Connor, 208 Ga. 39 ( 65 S.E.2d 890), where a full statement of facts will be found. On the previous appearance of this case, the judgment of the court below refusing a new trial was reversed. Before the remittitur of this court was made the judgment of the court below, defendants in error filed an amendment to the original petition, which laid out new demises. This amendment was allowed, subject to demurrer, motion, and objection. Plaintiffs in error filed their answer to the petition as amended, and their demurrer, motion to strike the amendment, and their plea in abatement.
When the case came on for trial, and after the remittitur of this court had been made the judgment of the court below, defendants in error offered a second amendment, alleging that there had been no administration of the estate of Thomas O'Connor.
Defendants in error made an oral motion to overrule and dismiss the motion to strike the amendment, and an oral motion to strike the plea in abatement. The grounds of both these oral motions made by the defendants in error were, that the act of the General Assembly of Georgia, approved March 27, 1941 (Ga. L. 1941, pp. 487-489; Code, §§ 67-1308 — 67-1315), is unconstitutional and void insofar as it applies to the security deed here under consideration; "That said act is violative of article 1, section 3, par. 2, Constitution of Georgia adopted in 1877, in force when the deed was executed, and of the Constitution of Georgia of 1945, where the same provision is found as article 1, section 2 . ., and also of the Constitution of the United States, article 1, section 10 . . which provision of the Constitution of Georgia and of the United States prohibits the passage of a retroactive law or a law impairing the obligation of a contract." The oral motions of the defendants in error also set out that the declaration had been amended to meet the objections set out in Williams v. O'Connor, supra.
The judge of the court below, after hearing argument, entered an order holding the above act unconstitutional, dismissing and overruling the motion to strike the amendment, and striking and dismissing the plea in abatement, and allowing the second amendment alleging that there had been no administration of the estate of Thomas O'Connor. To these rulings, plaintiff in error filed exceptions pendente lite.
The case then proceeded to trial. During the trial, defendants in error offered in evidence the security deed conveying the land sued for in this action. This evidence was objected to on the ground that it was more than 20 years past due, and that under the act of 1941, supra, and the decision of this court in Williams v. O'Connor, supra, the deed was inadmissible and was no evidence of title because title had reverted to the grantor. The evidence was admitted, and the act of 1941, supra, was held to be unconstitutional. To this ruling plaintiff in error excepted.
After all the evidence was in, counsel for both sides moved for a directed verdict, and a verdict was directed in favor of plaintiffs in ejectment, defendants in error here, and judgment was entered in accordance with that verdict. A motion for new trial was filed, amended, and duly overruled. Plaintiffs in error excepted to this judgment.
1. All questions insisted upon before this court except the ruling allowing the second amendment filed by the defendant in error, will be determined by a determination of the status of the security deed from W. A. Reid to Thomas O'Connor conveying the land here involved. In Williams v. O'Connor, supra, this security deed was held to be inadmissible under the act of 1941 (Ga. L. 1941, pp. 487-489) and to be no evidence of title — thus holding that the plaintiff had failed to prove title to the land claimed. It is now contended that the 1941 act is unconstitutional.
In Williams v. O'Connor, supra, it was said: "There was no such attack made upon the 1941 act, and accordingly, it follows that the act is presumed valid, and the deed was invalid as evidence of title." It is therefore the law of the case that the question of the constitutionality of the 1941 act was not raised in the first trial of the instant case, and that the security deed here involved was not admissible, and was no evidence of title. Defendants in error seek to avoid the effect of this judgment by attacking the constitutionality of the 1941 act for the first time on the second trial of the instant case.
This can not be done. This court has many times said that, when a statute is involved in the first trial of a case, the constitutionality of the statute must then be attacked; and, if it is not, upon a reversal by this court, it can not be attacked at a subsequent trial. See Wilson v. Missouri State Life Ins. Co., 184 Ga. 184 ( 190 S.E. 552); Lowe v. City of Atlanta, 194 Ga. 317 ( 21 S.E.2d 171); and Mays v. Deraney, 207 Ga. 617 ( 63 S.E.2d 380). In Wilson v. Missouri State Life Ins. Co., supra, it was said: "The plaintiffs in error insist that certain statutes fully set out in the pleadings are unconstitutional, for reasons fully stated in an amendment. While it does not appear that there is any merit in this contention, the question of the constitutionality of the statutes could have been urged at the outset, in the first suit. . . The status of the law complained of, in regard to their constitutionality, has not changed since the filing of the first suit."
In the instant case, the 1941 act was clearly involved in the first trial. Defendant in error had at that time an opportunity to raise the question of the constitutionality of that act. He did not do so. He can not do so now. "In other words, any cause of action that he had, any ground of complaint that he had, when he filed his suit at the outset, not embodied in such complaint, will be deemed to have been abandoned; otherwise, there would be no end to litigation." Wilson v. Missouri State Life Ins. Co., supra.
It follows that the judgment of the court below, holding the 1941 act unconstitutional, overruling and dismissing the motion filed by the plaintiff in error to strike the amendment, striking and dismissing the plea in abatement, and the judgment denying a new trial, was error.
2. The only question insisted upon that is not determined by the above rulings is whether it was error to allow a second amendment to the petition, alleging that there had been no administration of the estate of Thomas O'Connor after the remittitur of this court had been made the judgment of the court below. We deem it sufficient to say that, under the circumstances of this case, there was no error in allowing this amendment. However, for reasons stated in the first division of this opinion, the judgment of the court below must be
Reversed. All the Justices concur.