Adams v. Bd. of Com'rs of Whitley Cnty.

• Decision Date: 28 November 1905
• Docket Number: No. 20,588.,20,588.
• Citation: 76 N.E. 113,165 Ind. 530
• Parties: ADAMS v. BOARD OF COM'RS OF WHITLEY COUNTY.
• Court: Indiana Supreme Court

165 Ind. 530

76 N.E. 113

ADAMS

v.BOARD OF COM'RS OF WHITLEY COUNTY.

No. 20,588.

Supreme Court of Indiana.

Nov. 28, 1905.

Appeal from Circuit Court, Whitley County; Joseph W. Adair, Judge.

Action by Andrew A. Adams against the board of commissioners of Whitley county. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Dismissed.Marshall, McNagny & Clugston, for appellant. Gates & Whiteleather, for appellee.

MONKS, J.

This case was before this court and affirmed January 11, 1905. Adams v. Board, etc., 72 N. E. 1029. The record now shows by an entry nunc pro tunc that the ruling of the court sustaining the demurrer was excepted to by appellant, and this ruling is again assigned for error. Counsel for appellee insist, however, that, said judgment having been affirmed by this court on the former appeal, a second appeal cannot be taken. We concur in this contention. The decision of this court on the former appeal, affirming said judgment, necessarily determined finally and conclusively all questions presented and determined in the court below, including the final judgment therein, whether presented by the record or not, and a second appeal from such affirmed judgment of the court below cannot be taken on a record presenting either the same or different questions. 2 Enc. of Pleading & Prac. 355; 2 Cyc. 525; 24 Am. & Eng. Ency. of Law (2d Ed.) 811; Elliott's App. Proc. §§ 579, 585; Devoss v. Jay, 14 Ind. 400;Zimmerman v. Turner, 24 Wis. 483;McDonald v. State, 80 Wis. 410, 50 N. W. 185;State v. Lavelle, 38 S. C. 216, 16 S. E. 717, 17 S. E. 30;Pollock v. Cohen, 32 Ohio St. 514, 519;Smith v. Shaffer, 50 Md. 132, 136;Young v. Frost, 1 Md. 377;Miller v. Bernecker, 46 Mo. 194;Harburg v. Arnold, 87 Mo. App. 326;McCabe v. Emerson, 18 Pa. 111;Johnson v. Murphy, 107 Tenn. 558, 64 S. W. 895;Platte, etc., Co. v. Hubbard (Colo. Sup.) 69 Pac. 514; Davis v. Alexander, 1 G. Green, 86; Trulock v. Friendship Lodge, 75 Iowa, 381, 39 N. W. 654;Banton v. Campbell's Heirs, 48 Ky. (9 B. Mon.) 587. In Zimmerman v. Turner, 24 Wis. 483, it was held that after a judgment had been affirmed by the Supreme Court against a party he could not, by having a new bill of exceptions settled, so as to present a question not presented before, sue out a new writ of error. In Devoss v. Jay, 14 Ind. 400, the question now presented was before this court for decision, and the second appeal was dismissed. The court said: “The judgment of the court below, from which the former appeal was taken, was by this court affirmed. Now another appeal is here from the same judgment, but the record has been perfected since that decision, so as to present points that could not be then considered. This court then passed upon all points that could be raised upon the record, as the parties chose to submit it. Then was...