Sovereign Camp W. O. W. v. Cooper

Sutton, J. This court, in Sovereign Camp W. O. W. v. Cooper, 62 Ga. App. 390 (8 S. E. 2d, 161), ruled that the plaintiff’s petition as amended set forth a cause of action, and that the trial court did notif err in overruling the defendant’s general demurrer. The defendant, under rule 50 of the Supreme Court, then in effect but since repealed, in respect to applications for certiorari to that court (Code, § 24-4554; 187 Ga. 843; 190 Ga. 894), filed exceptions pendente lite in this court, and thereafter a trial was had in the superior court, resulting in a directed verdict for the plaintiff. The defendant’s motion for new trial was overruled; and under the ruling made on the first appearance of the case before it, as the law of the case, this court, in Sovereign Camp W. O. W. v. Cooper, 66 Ga. App. 265 (17 S. E. 2d, 556), affirmed the judgment of the trial court. On the death of the plaintiff shortly thereafter, this court, on motion, substituted as defendant in error Homer G-. Cooper, executor of the last will and testament of the original defendant in error, John P. Cooper, in his stead. On certiorari, in which the plaintiff in error assigned error, among other things, on its exceptions pendente lite filed in this court to the ruling on its general de *33 murrer, the Supreme Court, in Sovereign Camp W. O. W. v. Cooper, 194 Ga. 208 (21 S. E. 2d, 410), reversed the judgments rendered by this court, as referred to supra, and held that the petition as amended did not set forth a cause of action, and that “the subsequent verdict and judgment based upon such petition must fall.” Accordingly, the judgments rendered by this court as reported in 62 Ga. App. 390 and 66 Ga. App. 265, are hereby vacated and set aside, and the judgments of the trial court in overruling the defendant’s general demurrer and in overruling the defendant’s motion for new trial are reversed. Decided September 24, 1942. B. Cr. Plunkett, Anderson, Anderson & Walker, for plaintiff in error. Mallory O. Atkinson, Harry S. Strozier, contra. Judgments reversed. Stephens, P. J., and Felton, J., eoneur.