34 S.W.2d 450 | Ark. | 1931
This case, in all its essential particulars, was before this court and here decided in the case of Blackwell Oil Gas Company v. Maddux,
The appellant, in his complaint, further alleged that the consent judgment last named was and is a fraud upon the court and upon the complainant, and that the stipulation and consent judgment were the result of a conspiracy between Maddux and Flake and made for the purpose of defrauding the complainant, and that it had a meritorious defense if permitted to make the same, in that it was not indebted to Thomas W. Flake in any sum whatever. To this complaint the appellee here demurred setting out a number of grounds, which demurrer was sustained by the court, from which order and judgment is this appeal.
The appellee interposed fourteen grounds of demurrer, the eighth, twelfth and fourteenth grounds being statements in varying language of the same ground as set out in the seventh, which is: "That the complaint, on its face, shows that the complainant on the 31st day *1154
of August, 1929, filed a petition in the circuit court in and for Johnson County, seeking to avoid the judgment which the complainant now seeks to avoid, and that the circuit court on the 12th day of December, 1929, dismissed said petition and dissolved the injunction theretofore issued," and "Eighth: That the complaint, on its face, shows that the complainant appealed to the Supreme Court from the order dismissing the petition, and that the order of the circuit court in dismissing said petition was duly heard by the Supreme Court and the order of the circuit court in dismissing said petition was affirmed by the Supreme Court." An examination of the complaint bears out the statements made in the demurrer and shows that all of the material allegations contained therein had been heard and determined in the case heretofore adjudicated and reported in the 181 Arkansas, supra. It is a judicial axiom that a judgment or decree of a court of competent jurisdiction directly upon the point, or upon all such matters as are necessarily within the issues and might have been litigated in that suit, are conclusive between the same parties or their privies when brought into question in a subsequent suit. This principle was recognized in the case of Peay v. Duncan,
The meritorious defense offered in the instant case is that Blackwell Oil Gas Company, garnishee in the *1155 case of Maddux v. Flake, was and is not indebted to Flake in any sum whatever. This identical question was raised in a former proceeding and the question determined adversely to the contention of the appellant here. Blackwell Oil Gas Co. v. Maddux, 181 Ark. supra. Therefore, the doctrine announced in Peay v. Duncan, and Robertson v. Evans, and American Co. of Ark. v. Wheeler, supra, applies.
It follows that the decree of the trial court in sustaining the demurrer and dismissing the appellant's complaint must be affirmed. It is so ordered.