Hixon v. Callaway

Hill, C. J. (After stating the foregoing facts.) 1. Where the judgment of the lower court is reversed and a new trial is granted, all the questions in the case, except those de [417] cided by the Court of Appeals, remain open for examination on the second trial. Only the points decided by this court on review must be considered as settled on the second hearing. Willingham v. Sterling Cycle Works, 113 Ga. 953 (39 S. E. 314). In other words, a judgment of reversal is not a final judgment, except as to the questions ruled upon, and only remands the case to the lower court for further proceedings, or for another trial in accordance with the opinion of the reviewing court. Upon such new trial the lower court can try every question made in the original pleadings, or that may be made by> proper amendment, not inconsistent with the judgment of the higher court rendered in the case. In this respect a judgment of reversal, granting a new trial, is different from a judgment of affirmance generally. Swindell v. Bank, 4 Ga. App. 414 (61 S. E. 847). Where the judgment of the lower court is affirmed generally and another trial refused, the judgment is 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. Civil Code, § 3742. The affirmance of the judgment ends the case. Swindell v. Bank, supra, and decisions cited. When this case was before this court on the former writ of error, the judgment of the lower court, refusing to grant a new trial, was reversed on one question of law only, and no decision was made against the defendant in error as to the other questions in the record. These questions were, therefore, left open. On the second trial the defendant could rely upon the other defenses set up and not decided by this court, and could amend his answer and set up other defenses to the rule. The allegations of the amendment, if proved, constituted a good defense. There was conflict m the evidence as to the truth of the issue made by the traverse to the amended answer, but the court settled this conflict in favor of the defendant, and this court will not disturb the finding. Judgment affirmed.