
    Thuis, Administrator, v. City of Vincennes.
    [No. 5,023.
    Filed April 26, 1905.]
    Appeal and Error. — Subsequent Appeal. — Lam of the Case. — Evidence. —The reversal, on appeal, of a judgment for plaintiff, because of insufficient evidence, is the law of the case on a subsequent appeal, and where the evidence on the second trial is the same as on the first, a judgment for defendant will be affirmed.
    From Knox Circuit Court; Orlando II. Cobb, Judge.
    Action by Frank A. Thuis as administrator of the estate of Theodore Thuis, deceased, against tiro City of Vincennes. From a judgment for defendant, plaintiff appeals.
    
      Affirmed.
    
    
      W. A. Cullop, George W. Shaw and C. B. Kessinger, for appellant.
    
      Emison & Moffett, for appellee.
   Comstock., C. J.

This is the second appeal in this cause. City of Vincennes v. Thuis (1902), 28 Ind. App. 523. A statement of the complaint is there made, and its repetition hero is unnecessary. Under the former appeal the court, after reviewing the evidence, without passing upon other alleged errors, held that upon the facts disclosed by tlie record the appellee could not recover. In the present-appeal it is contended that the evidence of the two trials is without material difference, and that the former decision of this court became and must remain the law of the case, and must be applied to all its stages. The rule referred to is so generally recognized that we cite no authorities in its support. Of course the decision upon the former appeal will control only as to the,facts upon which it was based. We know of no substantial change in the testimony upon the retrial. Hone is pointed out, and it only remains to apply the law of the case, as announced in City of Vincennes v. Thuis, supra, to the facts, unchanged as they appear of record, and affirm the judgment.

Affirmed.  