Finch v. McIntosh, 181 Ill. App. 86 (1913)

April 18, 1913 · Illinois Appellate Court

181 Ill. App. 86

Ed. Finch, Appellee, v. J. W. McIntosh, Appellant.

1. Appeals and errors—when former decision res adjudicata. Where on a second appeal the same questions are sought to be raised as were passed on in a former appeal, the former decision is res adjudicata.

2. Appeals and errors—res adjudicata. Where a case is reversed and remanded for new trial, the principle announced by the appellate tribunal in the opinion must control on a retrial and on an appeal from a judgment rendered on retrial, if the case presented on the second trial is the same.

Appeal from the County Court of McDonough county; the Hon. Conrad G. Gumbart, Judge, presiding.

Heard in this court at the October term, 1912.

Affirmed.

Opinion filed April 18, 1913.

Eltihg & Hainlinb, for appellant; Gilbert J. Haihline, of counsel.

Flack & Lawyer, for appellee.

Mr. Justice Creighton

delivered the opinion of the court.

This is an appeal prosecuted from the county court of McDonough county, asking to have reviewed a judgment in favor of the appellee in the sum of $168.50.

The only legal question involved in the record is the construction of a certain contract made hy appellee with appellant to bore a well upon the premises of appellant.

This same case, in all respects, was passed upon by this court and an opinion filed December 13, 1911 (Finch v. McIntosh, 171 Ill. App. 120), and the identical questions sought to be raised by this appeal, were squarely passed upon, and the former judgment reversed and the cause remanded for a new trial.

Upon the cause being redocketed in the trial court, in conformity with the ruling "of this court, on the former appeal, a new trial was had upon the same facts as presented at the first hearing, and a judgment rendered against the appellant. Thereupon this appeal was perfected.

The rule of res adjudicata must be applied in this case.

In Penn. Plate Glass Co. v. James H. Rice Co., 216 Ill. 561, the Supreme Court, in discussing this question, said: “The law is clear that when a case is reversed by an appellate tribunal and remanded for a new trial, the principles announced by the appellate tribunal in its opinion, on a retrial of the case in the court to which the case is remanded and upon an appeal from a judgment rendered upon such remandment, must control if the case presented upon the second trial and appeal is the same case as the case in which the opinion was filed reversing and remanding the case.”

The judgment of the county court is affirmed.

Affirmed.