Opinion
No. 18,028.
Filed December 21, 1950.
APPEAL — Determination — Law of the Case — Former Decision as Law of the Case. — Where substantially the same evidence was heard on a retrial of a case and substantially the same issues were presented to the Appellate Court on a second appeal, the decision of the Supreme Court, which transferred the cause and reversed the judgment on the first appeal, established the law of the case.
From the Huntington Circuit Court, Burr Glenn, Judge.
Action by William F. Egbert against William C. Egbert and others to foreclose a mortgage. After a judgment in favor of defendants had been reversed by the Supreme Court and the cause remanded, another judgment in favor of defendants was rendered, from which plaintiff appeals.
Reversed with instructions. By the court in banc.
Howard S. Grimm, of Auburn, Otto E. Grant, of Fort Wayne, and Claud V. Barker, of Albion, for appellant.
Mountz Mountz, of Garrett; Dan M. Link; and Husselman Husselman, both of Auburn, for appellees.
This is the second appeal in this case. Originally it was tried in the Noble Circuit Court where there was a finding in favor of appellees. On appeal we affirmed that judgment. The Supreme Court, on appellant's petition, transferred the case and reversed the judgment of the Noble Circuit Court. Egbert v. Egbert et al. (1948), 226 Ind. 346, 80 N.E.2d 104. Subsequently the case was retried in the Huntington Circuit Court. On substantially the same evidence that court again found in favor of appellees. On this appeal substantially the same questions are presented as were before this court on the original appeal.
Right or wrong, under a long line of decisions of both this court and the Supreme Court, the decision of the Supreme Court cited above establishes the law of this case. Riesbeck Drug Company v. Wray, Administratrix (1942), 111 Ind. App. 467, 39 N.E.2d 776 (transfer denied); Daugherty et al. v. Daugherty et al. (1949), 119 Ind. App. 180, 83 N.E.2d 485.
Therefore, the judgment must be reversed, with instructions to sustain appellant's motion for a new trial.
NOTE. — Reported in 95 N.E.2d 637.