#### Chicago, Indianapolis and Louisville Railway Company *v.*City of Bloomington.

[No. 22,448.

Filed June 12, 1914.

Rehearing denied October 8, 1914.]

1. *Appeal.*— Review.—Riding *on Motion for New Trial.*— The overruling of a motion for a new trial, filed after the expiration of the statutory limit, is not error, p. 238.

2. *Appeal.*— Subsequent *Appeal.*— Right *of Review.*— Waiver.—Alleged error in the ruling on a demurrer, which could have been presented by the assignment of cross-errors on a former appeal of the case, can not be considered on a subsequent appeal thereof, since failure to so present it was a waiver of the right to its consideration on the subsequent appeal, p. 238.

3. *Appeal.*— Questions *Reviewable.*— Subsequent *Appeal.*— Only the proceedings following the reversal on a prior appeal are reviewable on a subsequent appeal, p. 238.

4. *Couets.*— Supreme *and Appellate Courts.*— Jurisdiction.-—--Amount *in Controversy.*— Under §9 of the act of 1901, as amended in 1907 (§1392 Burns 1914, Acts 1907 p. 237), relating to the jurisdiction of the Supreme and Appellate Courts, all cases wherein the amount of money in controversy, exclusive of interest and cost, on the judgment of the trial court, exceeds $6,000, are appeal-able to the Supreme Court exclusively, and its jurisdiction over such cases is to be determined by the amount in controversy as shown by the judgment of the trial court, and not by the amount as shown by the pleadings or facts found; hence the jurisdiction on appeal from a judgment for defendant was in the Appellate Court, notwithstanding its judgment of reversal, directing the trial court to restate its conclusions and render judgment for plaintiff, necessitated the rendition of a judgment for more than $6,000. p. 239.

Prom Lawrence Circuit Court; *Oren O. Swails,*Judge.

Action by the City of Bloomington against the Chicago, Indianapolis and Louisville Railway Company. Prom a judgment for plaintiff, the defendant appeals.

*Affirmed.*

*E. O. Field, Brooks & Brooks*and *H. B. Eurrie,*for appellant.

*Ira C. Batman*and *Miers & Corr,*for appellee.

Morris, J.

Minnie Woodworth recovered judgment for *237$5,000 against appellee for damages sustained by reason of a defective sidewalk. On appeal to the Appellate Court the judgment was affirmed. *City of Bloomington*v. *Woodworth*(1907), 40 Ind. App. 373, 81 N. E. 611. The city paid the judgment and accrued costs on December 3,1907, and thereafter sued appellant for the amount paid, on the theory that it was appellant’s duty to have kept the defective sidewalk in repair. To this complaint appellant in January, 1908, filed an answer in two paragraphs, the first of which was a general denial. The second paragraph is termed a plea of former adjudication and avers that Minnie Woodworth in March 1905, filed her complaint against the city. This is followed by a copy of the complaint, and averments to the effect that the city answered by general denial, and notified appellant to appear and defend the suit; that appellant refused to appear and defend; that there was a trial, resulting in a verdict and judgment for plaintiff in the sum of $5,000; that the effect of the judgment was to determine that the city was solely guilty of the negligence charged in the complaint. The court sustained a demurrer to the paragraph, and the case proceeded to trial on the issue formed by the general denial. The court found the facts specially, and stated its conclusions of law thereon in favor of the appellant and on January 8, 1910, rendered judgment for costs in favor of appellant. The court found that the city had, on December 3, 1907, paid the Woodworth judgment, together with interest, costs, etc., amounting to $5,966.70. The city appealed the ease to the Appellate Court, assigning as error the court’s conclusions on the facts stated. The judgment was reversed with instructions to restate the conclusions of law and render judgment for the city for $5,966.70 with accrued interest from December 3,1907. *City of Bloomington*v. *Chicago, etc., R. Co.*(1913), 52 Ind. App. 510, 98 N. E. 188. Appellant thereafter filed a motion in the Appellate Court to transfer the cause to this court, because, as alleged, by reason of the accrued interest, it would *238be necessary for the trial court, in obedience to the mandate, to render judgment for more than $6,000 — the limit of the jurisdiction of the Appellate Court. This motion was overruled and appellant filed its petition to transfer the cause to this court under the provisions of §1394 Burns 1914, Acts 1901 p. 565. The petition was overruled by this court on February 19,1913. The opinion of the Appellate Court was certified to the court below on February 22, 1913, and, on motion of appellee the court restated its conclusions of law and rendered judgment pursuant to the mandate of the Appellate Court. Appellant thereafter, at the March term, 1913, of the Lawrence Circuit Court, filed a motion for a new trial, assigning as grounds therefor, among other things, that the special findings of the court, filed more than three years prior thereto, were not sustained by sufficient evidence. The motion was overruled.

1.

2.

3.

The errors here assigned are predicated on the alleged errors in sustaining the demurrer to appellant’s second paragaph of answer, in overruling the motion for a new trial, and on the restated conclusions of law on the facts found. There was no error in overruling the motion for a new trial. The statutory limit, for filing it had expired more than three years before it was filed. §587 Burns 1908, §561 R. S. 1881. This court can not consider the alleged error in the ruling on the demurrer to appellant’s second paragraph of answer. The question might have been presented in the previous appeal by assigning cross errors. Appellant failed to do this, and thereby waived any right to its consideration on a subsequent appeal, which presents nothing for review except proceedings subsequent to the reversal. *Stevens*v. *Templeton*(1910), 174 Ind. 129, 131, 91 N. E. 563, and authorities cited. Elliott, App. Proc. §418.

*2394.

*238Appellant earnestly contends that the Appellate Court was without jurisdiction of the subject-matter of the former appeal and that consequently its opinion does not constitute *239the law of the case, and we are asked to review the questions presented to that court and decided by it on the former appeal. This question was necessarily determined by this court on the former appeal by its refusal to grant the petition to transfer, but as no opinion was written on such denial it is deemed proper to discuss the subject here.

The law governing the matter is found in §9, of the act of 1901, as amended in 1907, relating to the jurisdiction of this court, in appealable cases. By the provisions of the section, the Appellate Court has jurisdiction of all appeals, except as provided in 18 clauses of the section, which confer on this court jurisdiction of the appeals therein designated. §1392 Barns 1914, Acts 1907 p. 237. Subdivision 14 reads as follows: “All cases wherein the amount of money in controversy, exclusive of interest and cost, *on the judgment of the trial court,*exceeds $6,000.” (Italics ours.)

In this case there was no judgment in January, 1910, for appellee city at all. There was, on the other hand, a judgment for appellant, for costs. If a judgment at that time had been rendered for the city, on the facts specially found, it would have been more than $6,000, in which case, an appeal would have been prosecuted to this court. But no such judgment was rendered. It may be conceded that on the pleadings and facts found, there was, when the judgment for costs was rendered in January, 1910, more than $6,000, in actual controversy. But the amount in actual controversy as shown by the pleadings, or facts found, does not determine this court’s jurisdiction of the appeal. By the language of the statute, the amount in controversy, “on the judgment of the trial court,” determines the question. *Cronin*v. *Zimmerman*(1907), 169 Ind. 75, 81 N. E. 1083. Tested by such rule, the Appellate Court had exclusive jurisdiction of the appeal, subject to the provisions of the act relating to transferring, and, as a result, had the power *240to make all necessary and proper orders incident to a reversal of the judgment of the trial court. All other errors assigned relate to questions determined by the Appellate Court, in its opinion on the former appeal.' The decision of that court constitutes the law of the case. *James*v. *Lake Erie, etc., R. Co.*(1897), 148 Ind. 615, 48 N. E. 222; *Ohio Valley Trust Co.*v. *Wernke*(1913), 179 Ind. 49, 99 N. E. 734, and authorities cited. There is no error. Judgment affirmed.

Note. — Reported In 105 N. E. 561. See, also, under (1) *29*Cyc. 958; (2) 3 Cyc. 398; (3) 3 Cyc. 395; (4) 11 Cyc. 816, 818.