Wildwood Construction Co. v. Cadranel

122 S.E.2d 758, 104 Ga. App. 697, 1961 Ga. App. LEXIS 774

• Court: Court of Appeals of Georgia
• Decided: October 6, 1961
• Docket: 39106
• Status: Published

Opinion

Nichols, Judge.

On the first appearance of this case before this court it was held that the plaintiff introduced evidence in support of each of the allegations of his petition and that a nonsuit should not have been entered. Such decision established as the law of the case, that such evidence would authorize a finding that the plaintiff proved his case as laid. On the second trial the plaintiff’s evidence was substantially the same as that adduced on the first trial, and while the defendant’s evidence tended to contradict such evidence, still a question was presented for the trior of facts as to whether the evidence of the plaintiff or that of the defendant was to be believed.

Prior to the second trial the defendant’s general demurrer to the plaintiff’s petition as amended was overruled and no exception has been taken to such judgment, and as long as such judgment stands unreversed the law of the case is that the petition set forth a cause of action. See Cloud v. Stewart, 92 Ga. App. 247, 249 (88 SE2d 323), and citations.

Where a petition sets forth a cause of action and the plaintiff proves his case as laid by a preponderance of' the evidence his is entitled to a recovery. See McKool v. Naddra, 100 Ga. App. 171 (1) (110 SE2d 409), and citations.

While certain of the defendant’s evidence contradicted the plaintiff’s evidence and sought to impeach the plaintiff’s evidence yet the finding for the plaintiff was authorized. The trial court did not err in overruling the defendant’s motion for new trial.

Judgment affirmed.

Carlisle, P. J., and Eberhardt, J., concur.