Huson v. Candler

Bell, Justice. This was a suit to enjoin tbe inclosing of a vacant tract of land, in violation of a covenant between the defendants5 predecessor and an alleged common grantor of the plaintiffs and the defendants,' whereby the tract would be kept open [558] for the common use of adjacent owners. The jury returned a verdict in favor of the defendants, and the judgment overruling the plaintiffs’ motion for a new trial was reversed by this court on the ground that the verdict was without evidence to support it. Godfrey v. Huson, 180 Ga. 483 (179 S. E. 114). On the next trial the jury found in favor of the plaintiffs. The defendants’ motion for new trial was overruled, and they excepted. The motion was based only upon the general grounds, and amplifications thereof as contained in an amendment. Eegardless of the merits of the questions now raised, the facts relating thereto were the same in the former record, and therefore the former decision reversing the judgment in favor of the defendants on the general grounds necessarily adjudicated that so far as such facts were concerned a verdict in favor of the plaintiffs would be authorized. Otherwise the judgment would have been affirmed for want of evidence to support the petition, despite the failure of the proof to sustain the defenses. That decision is now the law of the case, and on the record requires an affirmance of the judgment. See Hollis v. Nelms, 115 Ga. 5 (4) (41 S. E. 263); Sims v. Georgia Ry. &c. Co., 123 Ga. 643 (51 S. E. 573); Dolvin v. American Harrow Co., 125 Ga. 699, 702 (54 S. E. 706, 28 L. R. A. (N. S.) 785); Pierpont Mfg. Co. v. Savannah, 153 Ga. 455 (112 S. E. 462). In the circumstances no decision will be made upon other questions. Judgment affirmed. All the Justices concur, except Hutcheson, J., disqualified.