Lebanon National Bank v. Clinton School Township, 24 Ind. App. 359

24 Ind. App. 359 | Ind. Ct. App. | 1900

Comstock, J.

Appellant instituted this action to recover money paid out by it for the use and benefit of appellee. The cause is here for the second time upon appeal. Upon the former appeal, the judgment was reversed because the complaint failed to show in either paragraph that any necessity existed for borrowing the money for the recovery of which the action was brought. The opinion is reported Clinton School Tp. v. Lebanon Nat. Bank, 18 Ind. App. 42. The cause is now here upon an amended complaint in three paragraphs. The only question presented is its sufficiency.

The cause of action set out in the amended complaint is the same as that shown in the original complaint, being based upon the same facts, — the same transaction. Whether it be said that appellant loaned or advanced the money cannot change the character of the transaction. Neither paragraph of "the amended complaint shows a necessity for the loan of the money to the then township trustee by appellant.

The cause of action stated in the two complaints being the same, the decision upon the former appeal must stand as the law of the case. Lillie v. Trentman, 130 Ind. 16; Board, etc., v. Bonebrake, 146 Ind. 311; Cohoon v. Fisher, 146 Ind. 583, 36 L. R. A. 193; Dipert v. Jones, 4 Ind. App. 158; Board, etc., v. Cole, 8 Ind. App. 485; New Pittsburgh, etc., R. Co. v. Peterson, 14 Ind. App. 634; Elkhart, etc., R. Co. v. Waldorf, 17 Ind. App. 29; Keller v. Gaskill, 20 Ind. App. 502.

In view of the identity of the cause of action set out in the two complaints, and the full statement and discussion in the reported case, supra, we deem it unnecessary to set them out, or to prolong this opinion. A claim against a township for money loaned can only be enforced by showing, among other facts, the existence of the necessity for borrowing. This essential fact is not shown by the record before us.

Judgment affirmed.