December 6th, 1921. The opinion of the Court was delivered by
MR. CHIEF JUSTICE GARY.
The following statement appears in the record:
"This action was commenced by respondent against appellant on September 1, 1919, for damages alleged to have been sustained by respondent from the cutting down of trees by road hands on respondent's lot. To the complaint the appellant interposed a demurrer, which was sustained by the Circuit Judge, and the order of the Circuit Judge was reversed on appeal. 114 S.C. 382; 103 S.E., 767. The case was tried on its merits at the spring term of the Court of Common Pleas for Marion County, and the jury gave respondent a verdict for $250.00. Within due time appellant gave notice of intention to appeal."
There are two reasons why the exceptions cannot be sustained. In the first place, the questions raised are res adjudicata: and in the second place the principles for which the appellant contends are concluded by the cases of Faust v. Richland County and Kelly v. Richland County, 117 S.C. 251, 109 S.E., 151, in which the opinions were recently filed; the decisions having been rendered by the Court en banc.
Appeal dismissed.
MR. JUSTICE COTHRAN: I concur in the ground that the former appeal is res adjudicata. The judgment in that appeal is, in my opinion, wrong and should have been overruled, for the reasons given by me in the case of Faust v. Richland County. Both cases will yet be overruled.