8 Or. 152 | Or. | 1879
By the Court,
On the eighteenth day of February, 1871, Mary E. Barrett, the above-named appellant, recovered a judgment against Charles Barrett in the circuit court of the state, for the county of Multnomah, in the sum of five thousand nine hundred and twenty-one dollars and thirty-two cents and forty-six dollars and thirty cents costs. The foundation of the action was a decree for alimony in a divorce case prosecuted in the state of California wherein the said Mary E. obtained a divorce from the said Charles Barrett.
On the first of November, 1873, Charles Barrett died, leaving the judgment entirely unsatisfied, but at the time of his death there was pending against him and Xarifa J. Failing, then Barrett, a suit in equity to set aside as fraudulent a certain conveyance of real property and a sale of personal property—the same that is in question in this proceeding. The result of that suit was the securing of a payment on the judgment of three thousand and sixty-four dollars and forty-seven cents on the first day of May, 1876. On the tenth of August, 1878, the appellant obtained leave to issue an execution on the judgment for seven thousand three hundred and thirty-five dollars and sixty-seven cents, that being the
On the fifth day of December, 1878, the garnishee, X. J. Failing, filed her answer denying all the allegations of fraud, and averring that the property so received by her from Charles Barrett was of no greater value than three thousand dollars, and that she received and paid for the same in good faith. She then, for a further answer, alleged that on the second day of June, 1871, the said plaintiff commenced a suit in the circuit court for Multnomah county against the said Charles Barrett and this garnishee, in which suit the plaintiff sought to set aside the same sale and transfer of personal property which is set forth in the plaintiff’s allegations in these proceedings; that she asked in substance and effect that the sale and transfer of the personal property known as the Barrett bookstore, etc., from the said Charles Barrett to this garnishee, on the fourteenth day of September, 1870 (described herein as of about the - day of November, 1870), might be declared fraudulent and void as against her, and that the garnishee be decreed to account for all the said property; that she, the said garnishee, answered the said complaint, and it was made one of the issues in the said suit in equity, whether or not the said transfer
The .garnishee then alleges that the said suit was referred by the circuit court to E. C. Bronaugh, who was appointed a referee to take testimony; that the referee took the testimony upon all the issues in said suit in relation to the sale and transfer of the said Barrett bookstore, and on the twenty-second of September, 1873, made his report thereon to the effect that the sale and delivery of the said personal property to this garnishee, on the fourteenth of September, 1870, was not fraudulent and void, and that this report, so far as it relates to the personal property, was not excepted to, and on the eighth day of June, 1874, the said circuit court adjudged and decreed that the findings of said referee, in reference to the said personal property, should in all things be confirmed.
The plaintiff (appellant), on December 17, 1878, filed a reply, and on January 25, 1879, an amended reply, in which, among other things, she makes a denial substantially as follows: “And in reply to the further and separate answer of the said Xarifa J. Failing, to wit, the allegations of a former adjudication of the subject-matter of this proceeding, this plaintiff alleges that it is not true that the subject-matter of this proceeding was, in the suit commenced on the second day of June, 1871, or at any other time, adjudicated in any manner, and that there was not, at any time during the pendency of said suit, any evidence offered or taken by said referee, or introduced by either party to said suit, of the subject-matter in this proceeding, to wit, the said bookstore; denies that any evidence was introduced before or received by said referee, at any time, relating to the transfer, sale, or delivery of the subject-matter of this proceeding, to wit, the bookstore in controversy, or the rights of the garnishee; denies that the referee passed on the same, and alleges that, long before the finding of said referee therein, and before any trial thereof, this plaintiff, by her attorney, expressly and without objection
There are other defenses interposed by the garnishee, but it is unnecessary to present or consider them, as the view we take of the defense of a former adjudication disposes of this proceeding.
Upon filing the reply, the respondent, by her counsel, moved the court for judgment and decree upon the pleadings, and that the proceedings against the garnishee be dismissed; which motion was sustained by the court, and a decree entered accordingly.
From the answer filed in this case, it appears that on the fourteenth day of September, 1870, a suit in equity was commenced by the appellant, Mary B. Barrett, against Charles Barrett, and Xarifa J. Bailing, the respondent herein, to set aside the sale of certain property, including the Barrett bookstore, made by Charles Barrett to the respondent, because the same was made to defraud the creditors of said Charles Barrett. An answer was made in that suit by the respondent, denying the fraudulent sale. It is not denied by the appellant that the suit was concerning the subject-matter of this proceeding. Nor is it denied that the issue presented by the pleadings in that case was the same in regard to the Barrett bookstore as that now presented for consideration in this proceeding. The appel
These matters set forth in the reply can not be considered as any defense to the allegation of a former adjudication set up in the auswer, because it does not appear that the withdrawal of the litigation concerning the bookstore from the consideration of the referee was entered upon the record, or made a matter of record in the suit in equity. It is well settled that parol evidence can not be admitted to show that any issue presented by the pleadings in a former action or suit was withdrawn from the consideration of the court. The rule is that the judgment of a court of competent jurisdiction is not only conclusive on all questions not actually and formally litigated, but as to all questions within the issue, whether formally litigated or not. (Bellinger v. Croigne, 31 Barb. 537.)
In the case of Davis v. Talcott (12 N. Y. 184), where the defendant, in his answer, alleged that the matter in controversy had been adjudicated in a former action, and the plaintiff replied, alleging “that on the trial of the former action, the defendant therein withdrew from the consideration of the referee before whom it was tried, the matters alleged in the complaint in the second suit, and that the same did not pass into or form any part of the judgment rendered in that action,” it was held by the court of appeals that the plaintiff could not be permitted to prove that on the trial of the former suit, before the referee, no
In the case of Underwood v. French (6 Or. 66), where the plaintiff sought to recover damages for the breach of a contract, and the plea of a former adjudication was interposed by the defendant, it was held by this court that where it appeared, from an inspection of the record in the former action, that the same cause of action was presented in the former suit, and an issue joined thereon, the whole must be considered as res adjudicata, and that parol evidence would not be permitted to show that an issue joined by the pleadings was not tried by the evidence. This rule is applicable to suits in eauity, as well as to actions at law. (1 Johns. Cas. 492.)
According to the law, as declared in these cases, if this proceeding were now before the circuit court for trial upon the issues presented in the pleadings, the appellant would not be permitted to offer any evidence outside of the record itself to prove the allegations in her reply as to the withdrawal of the matters now in litigation from the consideration of the referee, and necessarily the matters herein sought to be litigated would have to be considered as res adjudicata.
Under the views herein taken, it becomes unnecessary to consider the other assignments of error. The decree of the court below is affirmed.