A majority of the court is of the opinion that the record in this case and the opinion of the Supreme Court when the original • casé between these parties was before it (144 Ga. 534) show that-'the ■original petition filed by the plaintiff was dismissed on special demurrer; and therefore that the- merits of- the case have never been passed upon, and the court below, trying the case without the intervention of a jury, erred in sustaining the plea of res adjudicata and dismissing the petition. Papworth v. Fitzgerald, 111 Ga. 54 (36 S. E. 311). The writer is in doubt, but.concurs.

Judgment reversed.