Thuis v. City of Vincennes

35 Ind. App. 350 | Ind. Ct. App. | 1905

Comstock., C. J.

This is the second appeal in this cause. City of Vincennes v. Thuis (1902), 28 Ind. App. 523. A statement of the complaint is there made, and its repetition hero is unnecessary. Under the former appeal the court, after reviewing the evidence, without passing upon other alleged errors, held that upon the facts disclosed by tlie record the appellee could not recover. In the present-appeal it is contended that the evidence of the two trials is without material difference, and that the former decision of this court became and must remain the law of the case, and must be applied to all its stages. The rule referred to is so generally recognized that we cite no authorities in its support. Of course the decision upon the former appeal will control only as to the,facts upon which it was based. We know of no substantial change in the testimony upon the retrial. Hone is pointed out, and it only remains to apply the law of the case, as announced in City of Vincennes v. Thuis, supra, to the facts, unchanged as they appear of record, and affirm the judgment.

Affirmed.