First National Bank v. Williams , 62 Ga. App. 203 ( 1940 )

The evidence fairly discloses that Mrs. Williams in her previous suit asked for an accounting and settlement of the estate. In that action a general demurrer was interposed, one ground of which alleged that the petition failed to set out a cause of action in equity or at law. All the grounds of the demurrer were sustained by the court, and the action was dismissed. That judgment was affirmed by the Supreme Court. Williams v. First National Bank of Atlanta, 181 Ga. 38 (supra). It is well settled law that a judgment on demurrer, until reversed, concludes the parties on all questions necessarily involved in the decision of the points raised by the demurrer. Equitable Mfg. Co. v. Hill-Atkinson Co., 17 Ga. App. 494 (2) (87 S.E. 715). "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue, in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, § 110-501. It is contended by counsel for the defendant in error, that the judgment on the demurrer was not res judicata, for the reason that the Supreme Court in affirming the judgment said: "The petition as amended failed to show an equitable cause of action, and the judge did not err in sustaining the demurrer." It is argued that this opinion of the Supreme Court was, in effect, a holding merely that the petitioner was not entitled to equitable relief, and left undecided the question of her right to obtain relief at law. I can not concur in this contention. The trial court in its ruling on the demurrer held that the petitioner had no cause of actionat law or in equity; and that judgment was affirmed by the Supreme Court. The fact that the Supreme Court in its two-line head note decision did not refer to that part of the judgment on the demurrer which held that the petition showed no cause of action at law is immaterial. The real decision of the Supreme Court was the judgment affirming the judgment of the trial court, rather than what was said or left unsaid in the decision. In Ga. Ry. Power Co. v. Decatur,153 Ga. 329 (3) (supra), the court said: "An affirmance by the Supreme Court of the order of the lower court granting a temporary injunction is a ruling upon all questions of law involved, though the legal contentions may not have been specifically enumerated or mentioned in the opinion of the court." See also, to the same effect, Savannah, Thunderbolt c.Ry. v. Savannah, 115 Ga. 137 (41 S.E. 592). In the instant case the petitioner was asking for an accounting of the estate, and for relief either at law or in equity. In sustaining the demurrer to the petition on the ground that it failed to set out a cause of action in law or in equity, the judge, under the allegations of fact set out in the petition showing how the defendants had handled the estate, resulting in the loss thereof, necessarily held that the defendants were authorized to handle the estate as they did handle it, even though it resulted in the loss of the estate. The affirmance by the Supreme Court of the judgment sustaining the demurrer and dismissing the previous case was in law an affirmance of the holding of the trial court that the petition failed to set out a cause of action at law or inequity, notwithstanding the failure of the Supreme Court to specifically say so. The judgment of the trial court on the demurrer, not having been reversed or set aside, has become the law of the case. The evidence in this case demanded the verdict directed in favor of the plea of res judicata; and the grant of a new trial was error.