Brooks v. Rawlings , 138 Ga. 310 ( 1912 )

Hill, J.

(After stating the foregoing facts.) To the judgment of the court overruling the demurrer to the petition in this case no exception was taken. It was, therefore, a conclusive determination that a right of action existed in favor of the plaintiffs, and they, subsequently to the overruling of the demurrer, having substantially proved their ease as laid, were entitled to recover. The grant of a nonsuit was therefore reversible error. In the ease of Sims v. Georgia Railway & Electric Co., 123 Ga. 643 (51 S. E. 573), it is said: “The right of the plaintiff to recover upon proof of the allegations made in his petition was adjudicated favorably to him by the judgment overruling the demurrer. ‘Until duly set aside, that decision is conclusive, and the question thereby settled is to be regarded as res adjudieata.’ Hollis v. Nelms, 115 Ga. 7 [41 S. E. 263]. In this judgment the defendant company acquiesced, neither filing exceptions pendente lite nor bringing it under review by a direct bill of exceptions to this court. On the trial of the case, therefore, the only question for determination was the amount of the damages suffered by the plaintiff, in the event he sustained by proof the allegations of fact on which he based his right of recovery. Richmond Hosiery Mills v. W. U. Tel. Co., 123 Ga. 216 [51 S. E. 290]. The defendant company was precluded from calling into question the right of the plaintiff to recover upon such proof being made. Ga. Northern Ry. Co. v. Hutchins, 119 Ga. 504 [46 S. E. 659]. As was remarked by Mr. Justice Cobb in Kelly v. Strouse, 116 Ga. 891-892 [43 S. E. 288], ‘If the defendant calls in question the sufficiency of the petition by demurrer, as he has a right to do, and the court renders an erroneous decision holding that the petition sets forth a cause of action, when in truth it does not, and the defendant acquiesces in this decision, of course no one will contend that, after the time allowed by law lias expired for. bringing under review this erroneous decision, the defendant can be heard to say that the petition sets forth no cause of action.’ When a case is in limine, the trial judge may of his own motion interpose to prevent a miscarriage of justice, provided ‘there is no estoppel of which either party may take advantage.’ Ibid. 874. But it is not .within the power of the trial judge to give to either party the benefit of a contention which he is himself estopped to urge.” Under the ruling just quoted, we think the court erred in granting the nonsuit in the present ease. Judgment reversed.

All the justices concur.