DeLoach v. Georgia Coast & Piedmont Railroad , 144 Ga. 678 ( 1916 )

Per Curiam.

Plaintiffs sued the railroad company for damages to their property, alleged to have resulted from constructing and operating a railroad through the streets of a 'town within a few feet of their1 property. The defendant demurred both generally and specially, and the court sustained the demurrer and dismissed the petition. On review the judgment of the court on demurrer was sustained. DeLoach v. Georgia Coast & Piedmont R. Co., 137 Ga. 633 (73 S. E. 1072). Subsequently the plaintiffs brought another suit for the same cause of action, alleging therein “That the said former action was brought to recover the same alleged damages by the same parties for which this action is brought.” The second action contained allegations designed to meet the defects in the first action, as pointed out by this court; all of which would have been proper to have been alleged by way of amendment in the first suit. The defendant pleaded the judgment on the demurrer in the first suit in bar of the second. Held:

1. Where a demurrer to a petition contained several grounds, some going’ to the merits and some special, and the court sustained the demurrer and dismissed the petition, there is no presumption that the ruling was based on the special grounds of the demurrer rather than the general, but the judgment will be treated as sustaining the entire demurrer upon all the grounds. Gunn v. James, 120 Ga. 482 (48 S. E. 148); 1 Freeman on Judgments (4th ed.), § 276a; Carr v. Trustees of Emory College, 32 Ga. 557; Dodson v. Southern Railway Co., 137 Ga. 583 (73 S. E. 834); Moor v. Farlinger, 138 Ga. 359 (75 S. E, 423),

February 16, 1916.

Action for damages. Before Judge Sheppard. Tattnall superior court. September 1&, 1914.

Way & Burlchalter, for plaintiffs. Hitch & Denmark and E. C. Collins, for defendant.

2. Tlie court, to whom the issue of res adjudicata was submitted for.decision without a jury, erred in holding, on the undisputed facts, that the first action was not a bar to the second.

3. It appearing that the question made in the cross-bill of exceptions is controlling upon the case as a whole, it has been first considered; and inasmuch as the judgment therein is reversed, there is no occasion for determining the errors alleged in the main bill of exceptions. Gay v. Gay, 108 Ga. 739 (32 S. E. 846).

Judgment reversed on cross-hill of exceptions. Main hill of exceptions dismissed.

All the Justices concur.