Ogletree v. Stanley

158 S.E. 465, 43 Ga. App. 253, 1931 Ga. App. LEXIS 289

Opinion

Jenkins, P. J.

1. “A judgment on demurrer, until reversed, concludes the parties upon all questions necessarily involved in the decision of the points raised in the demurrer.” Georgia Northern Ry. Co. v. Hutchins, 119 Ga. 504 (2) (46 S. E. 659) ; Loughridge v. City of Dalton, 166 Ga. 323, 325 (143 S. E. 393).

2. In this suit by a grandmother against the administrator of her deceased infant grandchild, for services rendered after the death of the parents of the child, in boarding, clothing, and nursing the infant, the judgment overruling a general and special demurrer which set up specifically that “the petition shows on its face the relationship of grandmother and grandchild, the grandmother standing in loco parentis; that the child itself was of such tender years no expressed contract could be made; and the circumstances plainly show no implied contract exists,” which judgment was not excepted to, necessarily adjudicated the right of the plaintiff to recover on account of boarding, clothing, and nursing the infant, upon proof of the allegations of the petition (McElmurray v. Blodgett, 120 Ga. 9, 15, 47 S. E. 531) ; and since the proof submitted proved the allegations of the petition substantially as laid, the court erred in directing a verdict for the .defendant as to all of the items sued for except certain burial expenses paid by the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur. John B. Gamble, for plaintiff. J. G. Faust, for defendant.