
    [No. 4346.]
    The Board of County Commissioners of Rio Grande County v. Phye.
    Appellate Practice — Former Decision — Law of the Case.
    Where a judgment for plaintiff was rendered c n an agreed statement of facts and on writ of error was reversed by the supreme court on the ground that the facts as stated did not warrant the judgment, and on second trial judgment was again rendered for plaintiff although the facts proven were in no essential particular different from the facts agreed to in the former trial, such judgment must be reversed.
    
      
      Error to the County Court of Bio Grande County.
    
    Mr. Jesse Stephenson, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Steele

delivered the opinion of the court.

James F. Phye recovered a judgment against the board of county commissioners of Rio Grande county in the year 1897; the board brought the case here by writ of error; the judgment was reversed, and the cause was remanded for a new trial. The case is reported in the 27th Colo., p. 107. The cause was submitted on the former trial upon an agreed statement of facts, and in the opinion filed it was held by this court that the facts as stated did not warrant the entry of judgment against the county. The second trial was before the court, without a jury, and testi-. mony was taken in support of the claim. Judgment was rendered for the plaintiff, and the cause is again brought here by the county.

In the course of the opinion cited it is said, “In the event of a new trial, we deem it proper to say that, on the facts as stipulated, the county is not holden. * * * That the county ought to have furnished and paid for the. nursing of the county charge may be, and doubtless is, true. That it did not, through its proper officers, expressly or impliedly incur the obligation to pay plaintiff, seems clear, if the agreed statement contains all the facts.”

The facts proved at the second trial are in no essential particular different from the facts admitted to exist in the agreed statement of facts, and we must, therefore, reverse the judgment. In doing so, we deem it proper to repeat the following from the opinion filed in the case when here for first time: ‘ ‘ Though the amount is small, and the demands of humanity would seem to appeal to the hoard to allow this claim, we can find no justification for sustaining the judgment against the county.”

The judgment is reversed. Reversed.  