28 Ind. App. 496 | Ind. Ct. App. | 1902
It is assigned as error that the amended complaint does not state facts sufficient to constitute a cause-of action. Upon suggestion of counsel for the appellee, we have examined the record on appeal on file in the office of the clerk of this court in cause No. 2,864, Mississinewa Mining Co. v. Andrews, 22 Ind. App. 523 and we find it to-be the cause now again before us. On the former appeal-the overruling of a demurrer to the complaint, for want of facts, was assigned as error, and this court held the complaint to be sufficient on demurrer. Afterward, in the court, below, the cause was dismissed as to one of -the plaintiffs, wife of the appellee, and an amended complaint was filed by the appellee. Upon comparison of the amended complaint now questioned for the first time on appeal with the original complaint, the sufficiency of which on demurrer was questioned on the former appeal, we find no substantial difference, except that, in accord with the suggestion of this court, the wife of the appellee was not made a party plaintiff
If the complaint was sufficient on demurrer, it could not he regarded as insufficient when first questioned on appeal. The decision on the former appeal, whether right or wrong,, remains the law of this case.
Judgment affirmed.
