Almand v. Northern Assurance Co.

Eblton, J. In order to shorten this opinion and avoid duplication of citations we first wish to concede certain propositions of law set forth in the dissenting opinion. We recognize that the filing of a general demurrer is a waiver of process and defective process. The writer concedes that the filing of a general demurer together with a demurrer directed at the lack of process or defective process is a waiver of process and defective process unless the general demurrer is filed subject to the demurrer directed at the lack of process, and such latter demurrer supersedes the general demurrer so as to reach the question of process before the general demurrer is passed on. Other members of this court concurring in this opinion make this second concession merely for the sake of argument and of the decision of this case because, whether the second proposition is correct or. not, it would not affect the conclusion in this case. We all recognize also that a former ruling on a general demurrer going to the merits is a bar to a subsequent action on the same cause of action. We also recognize that, where a bill of exceptions is-dismissed and the judgment of the trial court stands unreversed and unchanged, the judgment of the trial court is the law of the case. The crux of this case is this: Where the trial court sustains one general demurrer on its face apparently going to the merits of the case, and also at the same time sustains other demurrers directed at lack of legal process, and on appeal from that judgment this court interprets the trial court’s judgment as not being a ruling on the general demurrer to the merits, but one dismissing the action for lack of process, and dismisses the writ of error because the plaintiff below rendered the technical dismissal moot because he had re-sued his case—does the unreversed judgment of the trial court become the law of the case to the effect that the action was dismissed on its merits, or does the judgment of [668] this court become the law of the case to the effect that as interpreted by this court the trial court’s judgment was not a dismissal of the case on the merits? We think that this court’s judgment is the law of the case, and that the trial court erred in dismissing the action in the instant case. The basis for this view is plain. If the trial court dismissed the-first case on its merits and this court had dismissed the writ of error without affecting the trial court’s judgment by interpretation and construction, the trial-court judgment would be the law of the case. This would have been true if this court had dismissed the writ of error because the bill of exceptions was not presented in time, or was not served, or a similar reason. However, the complexion of the case is quite different when this court in making its decision whether to pass on the merits or dismiss the writ of error interprets and construes the trial-court judgment not to be a dismissal on the merits. Such a decision was vital to the plaintiff in error. If the trial court’s judgment was a dismissal on the merits, the plaintiff in error was entitled to a ruling on his exception to that judgment and his writ should not have been dismissed. If the trial court had rendered a judgment showing on its face that it did not rule on the merits, the plaintiff in error could have filed a second action, as against a plea of res judicata. The result is the same when this court in ruling on the trial court’s judgment rules that it is not a judgment on the merits. Such a judgment was in the plaintiff in error’s favor and protected the second action as against a plea of res judicata. He would have been under a misconception of its meaning if he had moved for a rehearing. The ruling by this court as to what the trial court’s judgment meant is the law of that case, whether the ruling was right or wrong. This court had jurisdiction of the case, and therefore it had jurisdiction to decide whether to pass on a,moot question, and in so acting had jurisdiction to- interpret the trial-court judgment. This court’s judgment and ruling on the trial court’s judgment is certainly of higher dignity than the trial-court judgment, and it would certainly be an anomaly to-say that the trial-court judgment takes precedence over a judgment of this court which defined and construed the trial-court judgment in such a way as to define the plaintiff in error’s rights. This court construed the lower-court judgment as [669] meaning that the lower court sustained the general demurrer on the grounds of no cause of action because there was no process, on the theory that, if there is no process, there is no petition to set forth a cause of action. This court, in rendering judgment in the first case, followed the ruling in Hall v. Alford, 34 Ga. App. 753 (131 S. E. 95). The writer, speaking for himself alone, is of the opinion that the judgment in the Hall case should have been one of affirmance. However that may be, the principle announced in the Hall case is that, where a trial court dismisses a case on a ground not directed at the merits, the filing of a second action shows acquiescence in the dismissal. The reason for this ruling is that the appealing party has rendered moot the question whether his case was properly dismissed on a ground not involving the merits because he had instituted a second action, which on the face of it was a good action as respects the defect by reason of which his first action was dismissed. The whole basis of the acquiescence rule is that the second action is good as to the defect mentioned. Otherwise, the appeal would not be moot. We know of no rule of law, and no case has been cited to show one, to the effect that if a case is dismissed on general demurrer, the losing party forfeits his right of appeal by filing a second action before appealing. We have always understood that if identical actions are filed at different times, the pendency of the first is cause for abatement of the second. Code (Ann.) § 3-607. Whether the first action was appealed before or after the second was filed has nothing to do with the issue. We think we can show beyond peradventure 'that there was no acquiescence in this case by filing of the second action. On the face of the judgment sustaining the demurrers it appears that the court dismissed the case on its merits as well as on grounds not going to the merits. If the plaintiff 'was correct in his contention that the ruling of the court on the merits was error, and the defendant was correct in his contention that the demurrers not going to the merits were good, then the plaintiff of necessity had to file another action if he expected to protect his client. If he had waited until his appeal had been decided, he might have been too late. We think he had a right to file his second action to insure his client’s rights in the event his first action was held to have been properly dismissed otherwise than on the merits. In [670] stead of passing on the ruling of the lower court, which was on its face a ruling on the merits, this court construed the lower-court judgment not to be a ruling on the merits, which put the case in the category of those where the trial-court judgments showed on their faces that the dismissal was not on the merits. This court has said what the trial-court judgment meant in determining its jurisdiction to pass on the case. That judgment of this court stands unreversed and is the law of the case to the extent that the defendant may not plead a judgment on the merits as a bar to the present action. That is the only question before this court and, of course, it is the only question we can or intend to decide. The court erred in sustaining the plea of res judicata and in dismissing the action. Judgment reversed. Gardner, P. J., Townsend and Carlisle, JJ., concur. Sutton, C. J., and Worrill, J., dissent.