Walden v. Nichols , 204 Ga. 532 ( 1948 )

1. The ground of demurrer assailing the petition for indefiniteness as to the character in which the defendant was sued, whether individually or as treasurer, was without merit.

2. As to the first two orders of the judge involved in this suit, the defendant treasurer was authorized to plead and prove in the mandamus proceeding any amounts due by the plaintiff to the county, as a defense to the amount claimed to be due in the mandamus proceeding. Consequently, the trial judge erred in striking the defendant's answer so pleading, so far as related to said first two orders.

3. However, as to the last order of the judge here involved, the answer set forth no valid defense, and was properly stricken on demurrer.

No. 16345. OCTOBER 11, 1948. REHEARING DENIED NOVEMBER 18, 1948. H. E. Nichols was granted a mandamus absolute ordering C. O. Walden, Treasurer of Floyd County, to pay to him certain amounts stated in two orders of the judge of the superior court for services performed as official stenographer. The defendant treasurer excepted, and this court reversed the judgment, ruling: "2. The order of a judge of the superior court, ordering paid a bill of a court reporter, may be attacked as being invalid and as being such a claim as the judge was not authorized to approve and order paid. 3. A court reporter can not be paid more than $2500, for reporting felony cases in any one year, from the funds of any one county. The treasurer of a county, against whom a mandamus proceeding is brought by a court reporter to enforce the payment of a claim alleged to be due him as official court reporter, may set off in that proceeding any amounts due the county by the reporter. In such a proceeding, neither the treasurer nor the county can obtain a money judgment against the reporter." Walden v. Nichols, 201 Ga. 568, to which reference is made for a full statement of the facts. That case was dismissed by the plaintiff in the superior court on June 21, 1948, and two days later another petition for mandamus was filed by the same plaintiff against the same defendant, to compel payment of three orders of the judge of the superior court — one in addition to the two which were the subject-matter of the dismissed case; the additional order being for $1740, signed by the judge on May 28, 1948. The defendant demurred to the petition on substantially the same grounds as those by which the petition had been attacked in the former case; an additional ground of demurrer raising the question whether the petition was against C. O. Walden individually, or as Treasurer of Floyd County. The defendant also filed an answer, in the main like the one made to the former mandamus petition. This answer also pleaded the former proceeding in the trial court and this court, and alleged: "The decision of the Supreme Court in said former mandamus proceeding has been and is the law of this case in so far as the claim in paragraphs three and four is concerned, and the same is stare decisis" as to the $1740 item. The judge overruled the demurrer to the petition, sustained the demurrer to the answer, and granted a mandamus absolute requiring payment of all orders as prayed. The defendant treasurer excepted.

Counsel for the treasurer, plaintiff in error, insist that the "law of the case" rule "and the decision of this court as it appeared in 201 Ga. — clearly demands the reversal of the lower court in granting this mandamus absolute."

Attorneys for the plaintiff in the trial court, defendant in error, contend that, under the ruling in Walden v. Smith,203 Ga. 207, and Nichols v. Floyd County, 76 Ga. App. 792 (47 S.E.2d 163), the questions involved have been resolved against the defendant treasurer. 1. The ground of demurrer assailing the petition for indefiniteness as to the capacity in which C. O. Walden was named as defendant, whether individually or as Treasurer of Floyd County, is without merit. The second paragraph alleged "That C. O. Walden is a resident of Floyd County, Georgia, and is the duly elected and qualified treasurer of said county." It was alleged in paragraph 8: "Petitioner shows that it is the official duty of said treasurer to pay the aforesaid orders." While other paragraphs referred to the defendant simply as "said C. O. Walden," we do not see how the failure to specifically designate him as treasurer in every reference made to him rendered the petition vague and indefinite as to the character in which he was being sued. The character in which a party is sued may be determined from the substance of the allegations of the petition, considered in its entirety.Wallace v. Wallace, 142 Ga. 408 (1) (83 S.E. 113);Hamilton v. Speck, 166 Ga. 667, 669 (144 S.E. 204). So considering the instant petition, it is clear that C. O. Walden was being sued in his official capacity as Treasurer of Floyd County.

2. "A decision by the Supreme Court is controlling upon the judge of the trial court, as well as upon the Supreme Court when the case reaches that court a second time. The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case, even though the ruling has been disapproved by the Supreme Court in a case decided before the second appearance of the case in that court." Western AtlanticRailroad Co. v. Third National Bank of Atlanta, 125 Ga. 489 (1) (54 S.E. 621); Southern Bell Tel. c. Co. v. Glawson,140 Ga. 140 Ga. 507 (79 S.E. 136); Smoot v. Alexander,192 Ga. 684 (16 S.E.2d 544); Shirling v. Hester, 201 Ga. 706,710 (40 S.E.2d 743)

(a) Under the principle above stated, the defendant, in conformity with the decision of this court in Walden v.Nichols, 201 Ga. 568 (40 S.E.2d 644), "was authorized under the law to plead and prove in the mandamus proceeding any amounts due by the plaintiff to the county, as a defense to the amount claimed to be due in the mandamus proceeding," so far as related to the first two orders for payment. The trial court erred in striking the defendant's answer and in thereafter granting a mandamus absolute against the defendant for payment of such orders.

3. However, as to the order for $1740, dated May 28, 1948, the rule stated in the preceding division does not apply, as that order was not part of the subject-matter of the proceeding reviewed in Walden v. Nichols, supra. Counsel for the defendant treasurer assert that as to such latter order the cited decision is "stare decisis," but since one Justice dissented, it is not thus binding on this court. In a later case, Walden v.Smith, 203 Ga. 207 (45 S.E.2d 660), this court held that an order of the judge ordering compensation to an official stenographer "became a judgment by a court of competent jurisdiction, and not being void on its face cannot be collaterally attacked." That decision is irreconcilable with the holding in Walden v. Nichols, supra, as to the effect of such an order. The majority of the court consider the rule thus stated in the Smith case the correct one, and as to the $1740 order will follow that decision rather than the Nichols case. Applying the ruling in the Smith case to the $1740 item, it is held that as to this third order the answer of the defendant set forth no defense and was properly stricken on demurrer.

Judgment reversed in part, and affirmed in part. All theJustices concur, except Wyatt, J., who dissents from headnote 3and the corresponding division of the opinion, and Bell, J.,absent on account of illness.