Meeker v. Lehigh Valley R.

HOLT, District Judge. This is a demurrer to an amended complaint. A previous complaint was demurred to, and the demurrer sustained by Judge Ray, with leave to amend. The complaint was then amended, and this demurrer filed. The present amended complaint, although considerably changed in form, in my opinion, states substantially the same cause of action as its predecessor. The grounds of Judge Ray’s decision, if correct, apply with equal force to the present amended complaint. In such a case the previous decision should be followed. If any other rule obtained, in any case in which a demurrer has been decided on the merits, it would always be possible, by making immaterial amendments, to have the same question brought on again before other judges successively. Such a proceeding is nothing, in fact, but an appeal from one judge to another. Without passing, therefore, at all upon the merits, I simply follow Judge Ray’s decision. Demurrer sustained.