
    Southern Railway Company v. Clift.
    [No. 23,876.
    Filed May 13, 1921.]
    
      Appeal. — Law of the Case. — Subsequent Appeals. — Where the Supreme Court on appeal decided that a paragraph of complaint stated a cause of action, and the cause was remanded with a mandate which amounted to • an express direction to overrule defendant’s demurrer, and the trial court obeyed the mandate, and defendant refused to plead over, the decision as to the sufficiency of such paragraph was the law of the case and the same question will not be reviewed on a second appeal.
    From Gibson Circuit Court; S. L. Vandeveer, Judge.
    Action by John H. Clift against the Southern Railway Company. From a judgment for plaintiff, the defendant appeals.
    
      Affirmed.
    
    
      Alex P. Humphrey, Edward P. Humphrey, John D. Welman, Lucius C. Embree and Morton C. Embree, for appellant.
    
      T. Morton McDonald and A. Dale Eby, for appellee.
   Per Curiam.

— This is the second appeal of this case. On the former appeal this court decided' that Acts 1911 p. 454 (§§3920b-3920h Burns 1914), was not in contravention' of the Constitution of the United States, at least so far as the initial carrier was concerned, and that the third paragraph of the complaint stated facts sufficient to constitute a cause of action. And the cause was remanded to the trial court with a mandate which amounted to an express direction to overrule appellant’s demurrer for alleged want of facts to said paragraph. Clift v. Southern R. Co. (1919), 188 Ind. 472, 124 N. E. 457. The trial court obeyed the mandate, and appellant refused to plead over, and suffered final judgment on its demurrer, from which this appeal was taken. And' the only question presented by the appeal is the sufficiency of the third paragraph of the complaint to withstand a demurrer for the same cause as before.

Upon that question the decision on the first appeal is the law of the case. Cleveland, etc., R. Co. v. Blind (1917), 186 Ind. 628, 629, 117 N. E. 641.

Appellee’s motion to dismiss the appeal having required us to examine this case, and it appearing to be one entitled to advancement, as involving a constitutional question and one of public interest, we deem it best to dispose of the whole matter at this time. The motion to dismiss the appeal is overruled, and the cause is now advanced for immediate consideration and decision.

The judgment is affirmed.  