#### Kissinger v. The City of Council Bluffs.

1. Pleading: practice: setting up in answer defense held bad on demurrer. Where defendant demurred to plaintiff’s petition, and the demurrer was overruled, that was an adjudication of the defense involved in the demurrer; and when defendant set up the same defense in its answer, *held*that a demurrer to the answer, on the ground that the sufficiency of the facts set up therein had been adjudicated against defendant, was properly sustained, — no question being raised as to whether the objection should not have been taken by a motion to strike.

*Appeal from Pottawattamie District Court*— IIon. A. R.. Thornell, Judge.

Wednesday, October 26.

Action to recover for taxes paid by the holder of the tax- , sale certificate, which was declared void for the reason that the taxes for which the lands described in the certificate were sold were illegally levied. A judgment was rendered for *172plaintiff, upon a demurrer to defendant’s answer being sustained. Defendant appeals.

*G. A.*Holmes, for appellant.

*Flicl&inger Bros.,*for appellee.

Beck, J.

I. The petition alleges that plaintiff purchased at tax sale certain lands upon which city taxes were levied; that plaintiff paid city taxes upon the lands, which were assessed and levied after the tax sale, and filed with the auditor the proper receipt itherefor, and that subsequently the owner of the lands brought an action against defendant and others, in which a judgment was entered, declaring and holding that the taxes for which the lands were sold were illegal, the lands not being subject to municipal taxation. The defendant answered this petition, alleging that the lands are within the limits of the city, and subject to municipal taxation; that plaintiff voluntarily purchased the lands at the tax sale, and that he made default in the action in which the taxes were declared illegally levied, being a defendant thereto. To'this answer the plaintiff demurred in the following language: “ Now comes the plaintiff, and demurs to the answer of the defendant city, for the reason that the facts therein stated constitute no defense to plaintiff’s action, in this: *First.*The matters and facts set up therein have been adjudicated by the demurrer to plaintiff’s petition heretofore filed in this action; and overruled by the court, that said answer is but a repetition of the matters and facts set up in said demun’er. *Second.*The defendant’s answer admits the decree set out in plaintiff’s petition, and by said decree defendant is estopped and concluded forever from setting up or claiming that the property on which the tax cei-tificate was issued was liable to the levy and assessment. *Third.*The answer admits the purchase of the land for taxes in the ordinary course of tax sale, and in accordance with the statute of the state, and that such payment is not *173voluntary, and payment under such circumstances is no bar to plaintiff’s recovery.” ' The district court sustained the demurrer, and, the defendant refusing further to answer, a judgment was rendered against it.

II. We are of the opinion that the decision of the district court cannot be disturbed. The record fails to show upon what grounds the demurrer was sustained. The abstract of defendant fails to present the demurrer filed by defendant to plaintiff’s petition. In support of the ruling of the court below upon the demurrer to the answer, we will presume that the record discloses the facts to be as stated in the first ground of the demurrer. A statement made by plaintiff in the nature of an amendment or correction of the abstract, which is not denied by defendant, shows the same facts. The very facts pleaded in the answer of defendant had been held, by á decision of the court below upon a demurrer to the petition, as an insufficient defense. The defendant was bound by that decision* and could not in his answer plead the facts relied upon in his demurrer as a cause of holding that the petition failed to present a cause of action. Parties are not thus allowed by successive pleadings to bring the same questions before the court for repeated decisions. The district court, having held upon the first demurrer that the defense pleaded was not good, was required to regard the questions raised by the answer as settled against defendant. The demurrer wras therefore rightly decided *upon*the first ground thereof. Whether the question was properly raised by demurrer or should have been presented upon a motion to strike, we need not inquire, as no such objection was made in the court below or in this court.

The judgment of the district court is

Affirmed.