Fowler v. Stebbins, No. 2,053

No. 2,053 | 8th Cir. | Mar 18, 1905

SANBORN, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

Identity of parties is as essential to an estoppel by res adjudicata as identity of causes of action. Conceding that the difference in the name Louis Fowler in the proceedings in partition and the name of the plaintiff, Lewis Fowler, is not material, on account of the identity of sound, nevertheless the latter was not bound by the decree in partition unless he was a party to the suit in which it was rendered — unless he was the Louis Fowler whom the plaintiff in the partition suit made a defendant by his petition. When one commences a suit to secure desired relief, the burden is upon him in the first instance to make such persons parties to his suit as will enable the court to lawfully grant the decree he seeks. When the decree or judgment has been rendered, it is evidence of its own validity. Identity of names is presumptive, but it is not conclusive, proof of identity of persons. One brings an action on a promissory note, and issues an attachment upon land, procures a judgment based upon service by publication upon a defendant called John Smith. That action, attachment, and judgment are presumptive evidence that each particular John Smith was the defendant, and was bound by the judgment. But they are not conclusive evidence of that fact. The John Smith who actually owned the land may prove by competent oral or written evidence that he was not the John Smith who was made defendant in that action; that he never made the promissory note which was the foundation of it; that its maker was another person, who bore the same name, but had no interest in his property; and upon the presentation of such proof the owner of the land becomes free from the estoppel of the judgment. A judgment is docketed against John Brown, based upon personal service. Presumptively, it is a judgment against each John Brown in the county, and a lien upon his real property. Yet every John Brown but the actual defendant may prove that he was not the defendant in the action, and, in order to do so, may show not only that the summons was never served upon him, but that he was not the person who made the note or contract or committed the act which was the basis of the recovery.

The fallacy in the contention that the judgment or decree conclusively estops every person who bears the name of a party to it from denying the truth of findings evidenced by the judgment or decree lies in the false assumption that every person who bears that name is the party to the suit. The person who was the party to the suit is estopped to deny the truth of the findings and the validity of the decree. No other person is thus bound. The prima facie presumption is that there is but one person who bears any particular name, and this presumption is the basis of the rule that identity of name is presumptive evidence of identity of person.. When the fact is established that there are more than one person who have the same name, and only one person by that name was made a party to the suit, the inevitable result is that only one of these parties was bound by the findings or by the judgment; and the question which one was so bound is open for trial by oral and written evidence, under the established rules of law, and in the trial of this issue no one is bound by the findings and decree until the fact is established by the evidence that he and not another was the party to the suit in which they were named.

The record in the partition suit, therefore, was not conclusive proof that the plaintiff in the action of ejectment was the same Louis Fowler who was made a defendant in that suit; and as he alleged in his reply, and his counsel asserted in his opening address to the jury, that he could establish by evidence the fact that he was a different person from the Louis Fowler who was made a party to that suit, he should not have been deprived of an opportunity to do so.

Moreover, the record in the partition suit robs the decree therein of the customary presumptive effect of a judgment upon the issue of identity. The proceedings which lead up to a decree generally disclose but one party with the same name, and the decree is presumed to be against each person of that name, because the presumption is that he is the only person who bears that name. If, however, the basis of a judgment be a complaint against George Smith, in which the plaintiff expressly avers that there are two men by that name, one of whom is the son of James Smith, and the other the son of Charles Smith, and that the defendant is not the son of James, but is the son of Charles, the issue of the identity of the defendant is tendered upon the face of the action itself, and proof by any George Smith that he is the son of James, or that he is not the son of Charles, would unquestionably exempt him from the estoppel of the judgment. In the suit in partition the summons or notice and its publication undoubtedly called into court and bound by the decree that Louis Fowler whom the plaintiff made a party to his suit, and it bound him only. The petition preceded the summons or notice in time, and was the foundation for its issue. Recourse must therefore be had to that pleading to learn who the Louis Fowler was that the complainant in that suit made a defendant. In that petition he avers that there were two persons named Louis Fowler, that one of them was the son of Hiram H. Fowler, that this one had died more than 10 years before the suit in partition was brought, and .that the other was the defendant Louis Fowler, who was “not the son of Hiram H. Fowler, and is not in any manner related to him.” The decree finds that these averments are true, and adjudges that the defendant Louis Fowler has no interest in the land. The plaintiff in the action of ejectment alleges that he was that son of Hiram H. Fowler who the plaintiff in the partition suit alleged was dead, and that consequently he was not the Louis Fowler who was a party to that suit. The logic of this position is a demonstration. The plaintiff in the partition spit had the right to malee and to refuse to make such persons parties to the suit as he elected. If he had alleged that there were two Louis Fowlers; that one was the son of Hiram, but that the defendant Louis Fowler was not the son of Hiram, and was no relation to him — could there be any doubt that the son would not have been, and the Louis Fowler who was not the son would have been, a party to the suit? Did the Louis Fowler who was the son of Fliram become a party to the suit because the plaintiff alleged that he was dead, and thereby placed beyond all question the fact that he neither made nor intended to make him a party? These questions bear their own answers.

Where the pleading upon which a judgment or decree is based discloses the fact that there were two persons with the same name who may be identified by their descriptions in the pleading, and that one of these persons was made a party to the suit, and the other was not, the latter may exempt himself from the estoppel of the decree by applying to himself by competent evidence the description in the pleading.

The judgment below is reversed, and the case is remanded to the Circuit Court, with directions to grant a new trial.