Turner v. Harper , 234 Ga. 891 ( 1975 )

234 Ga. 891 (1975) 218 S.E.2d 621

TURNER et al.
v.
HARPER.

30186.

Supreme Court of Georgia.

Submitted July 25, 1975. Decided September 2, 1975.

H. Thad Crawley, Garland T. Byrd, for appellants.

Bridges & Caldwell, Richard T. Bridges, Johnnie L. Caldwell, Jr., for appellee.

NICHOLS, Chief Justice.

The appellants seek a review of the denial of their second motion to set aside a summary judgment granting specific performance for the sale of real property.

This is the third appearance of this case in this court. See Turner v. Harper, 231 Ga. 175 (200 SE2d 748); s.c. 233 Ga. 483 (211 SE2d 742). The first appeal was from an interlocutory order and was dismissed for failure to file the certificate of immediate review within the time allowed by Code Ann. § 6-701 (a 2). The second appeal was from an order overruling a motion to set aside the judgment of May 7, 1973, granting specific performance to appellee. After the remittitur was entered in the trial court, appellants filed a second motion to set aside urging other grounds. The enumerations of error in this case are identical, with the exception of one, to those ruled on in Turner v. Harper, 233 Ga. 483, supra.

In Perry v. McLendon, 62 Ga. 598, 604, this court said: "No party, plaintiff or defendant, is permitted to stand his case before the court on some of its legs, and if it falls, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment." R. O. A. Motors, Inc. v. Taylor, 220 Ga. 122, 127 (137 SE2d 459); Southern R. Co. v. Overnite Transportation Co., 225 Ga. 291, 292 (168 SE2d 166).

This court in Turner v. Harper, 233 Ga. 483, supra, affirmed the denial of the motion to set aside this same judgment made by these same appellants and the judgment of the trial court denying this second motion to set aside such judgment shows no error.

Judgment affirmed. All the Justices concur.