ON PETITION FOR RE-HEARING.
Scott, J.On November 11th last an opinion was filed in this case reversing the judgment of the lower court and remanding it with instructions to issue a peremptory writ of mandamus to compel payment of the relator’s claim against the town of Medical Lake.
This action was taken on the ground that the Delator’s claim against said town had been established in his favor in a prior action decided by this court on June 5, 1894. 9 Wash. 112 (37 Pac. 306). The respondents have petitioned for a re-hearing, claiming that the merits of the matters in controversy have never been judicially passed upon, for the reason, as is claimed, that the prior action was decided upon a demurrer interposed by the respondents, and in their favor. Whatever the fact may be in this particular, *47we think the respondents are precluded from raising the question.
The basis of the disposition of the former cause was that the claim was a valid one, and that its validity-had been established. Upon that basis it was held that the relator, in bringing the suit against the town upon said claim, had mistaken his remedy, and that he should have resorted to mandamus. The action of the lower court in dismissing his cause was affirmed, whereupon this second proceeding was instituted. No mention is made in the opinion rendered in that case that the cause had been disposed of in the superior court upon a demurrer to the complaint, and we will not at this time look into the record to determine the fact. If the respondents were dissatisfied with the facts as assumed by the court in that cause, they should then have applied for a correction or modification of the opinion in that particular, and not have allowed the same to become the law of the case.
Not only was that not done, but the argument of the appeal in the present cause upon the part of the relator was based upon the ground that the legality of the claim had been established and settled in the prior proceeding. No claim was made by the respondents in their brief that said action had been disposed of upon a demurrer leaving the merits of the controversy unsettled, and even if such matters were available at that time, the failure of the respondents to present their claims in their brief would also preclude them from raising the point in a petition for a rehearing.
Re-hearing denied.
Hoyt, C. J., and Anders, Dunbar and Gordon, JJ., ■concur.