A former decision of this court in the same case becomes the law of that case; and where, as here, the former decision held that the evidence was sufficient to support a verdict for the defendants, and the same evidence was used on the second trial, under the law of the case the judgment of the court without a jury in favor of the defendants was authorized by the evidence.
No. 14303. NOVEMBER 10, 1942.
On the first trial a verdict was directed in favor of the plaintiff, and the defendants excepted to a judgment denying their motion for a new trial. This court (City of Sylvania v.Hudmon, 189 Ga. 385, 5 S.E.2d 885), reversed that judgment, holding that the evidence did not demand a verdict for the plaintiffs. On the second trial, by agreement of counsel, the case was submitted to the *Page 842
judge without a jury, on a stipulation of fact as follows: "It is also further agreed by and between counsel for both parties that the brief of evidence, or a copy thereof, which was submitted to the jury in the former trial of this case, be submitted and considered by the court as an agreed statement of facts covering all the evidence of fact in this case." Judgment was rendered in favor of the defendants, and the plaintiffs excepted, the bill of exceptions containing only one assignment of error upon the judgment in favor of the defendants.
The ruling by this court that it was reversible error to direct a verdict in favor of the plaintiffs was tantamount to holding that the evidence would have supported a verdict for the defendants. In Brenner v. Wright, 187 Ga. 770
(2 S.E.2d 410), it was said: "Since the evidence on the plea of prescription on all three of the appearances of the case in this court is substantially the same, the rulings made by this court on the legal effect of the evidence are now the law of the case." We have here a case where the evidence is not only substantially the same, but is precisely the same; and, as stated by this court in Dixon v. Federal Farm Mortgage Corporation,187 Ga. 660 (1 S.E.2d 732), "It is well settled that a former decision of this court in the same case becomes the law of that case, and can not thereafter, upon a subsequent appeal, be modified or overruled." It follows that the judgment excepted to was authorized by the evidence; and there being no other assignment of error, the judgment is