Mitchell v. Southern Bell Telephone & Telegraph Co.

102 S.E. 346, 150 Ga. 46, 1920 Ga. LEXIS 18

Opinion

Per Curiam.

1. Ordinarily, where a general demurrer which goes to the merits of the plaintiff’s case is sustained, the judgment is conclusive as to all matters which were set up in the petition, or which might properly have been alleged therein; but where a general demurrer to an equitable petition is based upon the grounds that the petition sets forth no grounds for equitable relief, and that the plaintiff has a full, complete, and adequate remedy at law (and such was the character of the demurrer as shown by the record in Southern Bell Tel. Co. v. Mitchell, 145 Ga. 539, 89 S. E. 514), and such demurrer is sustained, the judgment is not conclusive upon the merits of the case, but rules merely that a court of equity has no jurisdiction of the cause, for the special reason stated in the demurrer; and the petitioner in the equitable action is not barred by such judgment therein from pursuing his remedy at law.

2. As to the other grounds set up in the petition for certiorari, which was overruled, it does not appear that the court erred in determining them adversely to the plaintiff in certiorari.

Judgment affirmed.

All the Justices concur, except Gilbert J., absent on account of sickness.