McKinney v. State ex rel. Nixon

• Decision Date: 23 January 1889
• Citation: 19 N.E. 613,117 Ind. 26
• Parties: McKinney et al. v. State ex rel. Nixon, Drainage Commissioner.
• Court: Indiana Supreme Court

117 Ind. 26

19 N.E. 613

McKinney et al.

v. State ex rel.Nixon, Drainage Commissioner.

Supreme Court of Indiana.

January 23, 1889.

Appeal from circuit court, Clinton county; A. E. Paige, Judge.

Suit by Francis M. Nixon, as one of the drainage commissioners of Clinton county, against Wm. V. McKinney, Sr., and others, to enforce payment of assessments made against defendant's real estate. Defendants appeal from a judgment for plaintiff.

J. N. Sims, for appellants. Doyal & Gard, for appellee.

Mitchell, J.

Nixon, as one of the drainage commissioners of Clinton county, brought suit against McKinney and others, to enforce payment of assessments made against certain real estate owned by the defendants. The complaint was held sufficient upon demurrer, and this ruling was affirmed upon a former appeal to this court. 101 Ind. 355. As will be seen by recurring to the facts stated in the opinion rendered when the case was here before, a demurrer was sustained to the answer, and, the appellants refusing to plead further, the damages were assessed as upon a default. The judgment was reversed because the damages assessed were, in the absence of any proof showing the amount of the assessments, excessive. The judgment was accordingly set aside, and the cause remanded, with an order that the damages be reassessed. The complaint has not been changed in any particular. and we must therefore decline to enter upon an examination of the questions discussed by counsel which relate to and challenge the sufficiency of the facts to constitute a cause of action. The decision rendered upon the former appeal must be accepted as conclusive upon those questions.

In order that there may be an end to litigation, questions which were open to dispute, and were either expressly or by necessary implication decided on the first appeal of a cause, will not be open for review on a second appeal, upon which only so much of the proceedings as are found to have taken place after the order remanding the cause will be considered. What precedes the mandate will be regarded as finally disposed of, and no longer the subject of debate in any of the subsequent stages of the case. City of Logansport v. Humphrey, 106 Ind. 146, 6 N. E. Rep. 337; Forgeson v. Smith, 104 Ind. 246, 3 N. E. Rep. 866, and cases cited; Hawley v. Smith, 45 Ind. 183;Willson, v. Binford, 81 Ind. 588;Test v. Larsh, 76 Ind. 452. The opinion rendered by this court on the first appeal was certified to the court below on the 23d day of June, 1885, the June term of the Clinton circuit court being then in session. The next term of the court commenced on the first Monday of September following. The record shows that on the 26th day of October, 1885, that being the forty-third judicial day of the September term of the Clinton circuit court, the opinion having been filed in the office of the clerk of the Clinton circuit court on the 25th day of June, 1885, it was ordered spread of record by the court below. At the succeeding November term the defendants entered a special appearance, and moved to dismiss the cause on the ground that it had been discontinued. This motion was overruled. The appellants insist that the court below lost jurisdiction of the case, because, as they allege, it was not docketed for trial at the September term, that being the next term after the cause was remanded. When a cause is reversed, and sent back for further proceedings, if the opinion shall have been deposited with the clerk of the lower court 10 days or more before the first day of any regular term, the cause stands for trial at such term; otherwise it must be continued until the next term. Section 660, Rev. St. 1881. As we have seen, the opinion was filed during the June term of the Clinton circuit court. The case was necessarily continued, by force of the statute above cited, until the next term. We must presume that it was regularly docketed, and that it stood for trial at the ensuing September term. The record affirmatively shows that the case was on the docket at that term, and that a motion was made to spread the opinion of record. There was therefore no error in overruling the motion to dismiss the cause.

The court after wards refused to grant leave to the appellants to file an answer denying the...