165 Ind. 209 | Ind. | 1905
Appellee brought this action against appellant to recover damages for the alleged turning off by appellant of natural gas from the pipes which supplied appellee’s residence with said natural gas. A trial of said cause resulted in a verdict, and, over a motion for a new trial, a judgment in favor of appellee.
Appellant’s demurrer to the complaint for want of facts was overruled, and this ruling of the court is assigned for error.
It appears from the complaint that appellant was and is a natural gas company occupying the streets of the city of Greenfield, Indiana, with its gas-mains, and that appellee owned a dwelling-house abutting on a street so occupied by appellant, and had his house connected with appellant’s gas-main in said street for the purpose of using said natural gas for fuel and lights; that on February 12, 1902, appellant turned off the gas from the pipes which supplied appellee’s residence therewith; that, after the gas was so turned off, appellee brought an action against appellant in the name of the State, on relation of appellee, to compel appellant to furnish him gas at his said residence; that appellant ap
Appellant insists that said question was not res judicata, because the parties in the mandamus case and this case are not the same; citing Glenn v. State, ex rel. (1874), 46 Ind. 368. The case cited by appellant was a bastardy proceeding, and it was held that the record of a judgment in an action for seduction, by the relatrix against the defendant, was not admissible to prove sexual intercourse in the bastardy case, because the parties were not the same. This was correct, because in the bastardy case the State and not the relatrix was the real party in interest. The judgment rendered in such case, if against the defendant, does not belong to the relatrix, but must be expended for the support of the child. In the mandamus case brought by appellee against appellant, the relator, who was the appellee, and not the State, was the real party in interest, and the judgment recovered against appellant in that case was for the benefit of appellee and not of the State. Any question, therefore, in issue determined in that case is binding upon the parties in this case, because the real parties are the same.
Judgment reversed, with instructions to sustain the demurrer to the complaint, and for further procee'dings not inconsistent with this opinion.