3 Wyo. 639 | Wyo. | 1892
Lead Opinion
This case stands on demurrer to the amended petition. The demurrer sets up two grounds: ¿First, that the amended petition does not state facts sufficient to constitute a cause of action; and, second, that the amended petition shows on its face that the matters put in-controversy by it have already been adjudicated. It seems that the amended petition does state facts sufficient to-constitute a cause of action, and, for reasons which will be apparent.it is assumed that it does, unless for the reason that it shows a former adjudication of those facts. And this resolves the two grounds of demurrer into one, which is substantially the way in which the cause has been stated and argued by counsel. And the question is, does the amended petition show on its face that the matters in controversy have been adjudicated in a former action? If this question should be resolved in the affirmative the judgment of the trial court must be affirmed; otherwise, reversed.
The amended petition sets up that there was a former action between .Tames M. Culver and Mowry A. Arnold, the parties in interest as defendants here, as plain tiffs, and Jeremiah and Hannah Graham, plaintiffs here, as defendants. The former action was by bill in chancery. The amended petition in this action exemplifies that bill by copy as Exhibit A, and exemplifies the answer thereto by copy as Exhibit B. The amended petition, including these exhibits, shows substantially the following state of facts, which, in deciding this demurrer, are to be taken as true: The said Jeremiah Graham and Hannah Graham were husband and wife, and hart occupied the premises in controversy as a homestead since 1874, but on October 24, 1883. they had, by their joint deed execut
Does this state of facts show an adjudication of the issues presented in the present action? It is claimed by the plaintiffs in error that it does not show an adjudication of their homestead right. Was the homestead right included in the issues adjudicated in the former action? That action has more than odo object, and the bill of complaint tendered more than one issue. One object, probably the leading one, as being the immediate cause of the commencement of the action, was to obtain possession of the property, — to put plaintiffs in error out, and to put defendants in error in. To accomplish this alone the appropriate remedy would have been the legal action of ejectment. Another object, no less important, was to settle the title and ownership in defendants in error as against plaintiffs in error, by a decree decláring the title deeds of Hannah Graham fraudulent and void, and declaring defendants in error the owners of the property, as well as entitled to the immediate possession. The setting aside and declaring void the title deeds of Hannah Graham was a matter of purely equitable jurisdiction. The twofold nature of the relief sought, it being partly legal and partly equitable, has evidently led to some confusion of ideas, according as the cause has been viewed from a legal or an equitable stand-point. The supreme court of the territory, in the able and exhaustive
There were issues of equitable cogni-sance, as well as legal, to be determined; and this brings us to the question, what were the issues adjudicated in that suit? Having endeavored to brush away some of the fog which had settled around this case and obscured its surroundings, we will now endeavor to trace our way through the fields of res judicata. In the pleadings in contested suits there are often numerous allegations more or less intimately connected with the subject-matter of the litigation, and bearing upon the issues involved, which are, in no proper sense, issues in themselves, although they may be alleged on one side, and denied on the other. They are evidentiary matters, or matters of persuasive or argumentative force as bearing upon the actual issues in the ca*ose, but are not issues in themselves, in the sense of seeking, requiring, or receiving adjudication. Such allegations may be true, and still the party making them not be entitled to the relief sought, they may be false, and yet the party entitled to the relief on other grounds. Such allegations are not necessarily included in the issues, in the finding of facts, or in the judgment. Unless specially pleaded they are not adjudicated. Courts have sometimes endeavored to lay down rules, and have made suggestions not altogether harmonious, as to the methods of determining, among these multitudinous allegations, those which constitute the real issues in the cause. Wells, in his work on Res Adjudicata & Stare Decisis, gives probably as good a discussion of this matter as any to be found under the rigid rules of the common law. The same principles, with a more liberal construction, apply in chancery. We quote from Wells: “Sec. 200. Our first inquiry herein is, what is to be regarded as a matter in issue? It is plain that there may be subordinate and incidental matters tried during the controversy; but they are not to be considered as the matter in issue in the sense of the rule. The, New Hampshire court affords us a clear though not an exhaustive definition, thus: ‘Any fact attempted to be established by evidence, and controverted by the adverse party by evidence, may be said to be in issue in one sense; as, for instance, in an action of trespass, if the defendant alleges and attempts to prove that he was in another place than that where the plaintiff’s evidence would show him to have been at a certain time, it may be said that this controverted fact is a matter in issue between the parties. This may be tried, and may be the only matter put in controversy by the evidence of the parties. But this is not the matter in issue within the meaning of the rule. It is that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleadings, which is in issue. The declaration and pleadings may show specifically whatthis is, or they may not. If they do not the party may adduce other evidence to show what was in issue, and thereby make the pleadings as if they were special. But facts offered in evidence to establish the matter in issue are not themselves in issue, within the meaning of the rule, though they may be controverted on the trial. Deeds which are merely offered in evidence are not in issue, even if their authenticity be denied. When a deed is merely offered in evidence to show a title, whether in a real or personal action, there is no non est factum involved in the matter put in issue by the plea of nul disseisinr or not guilty, which makes the execution of that deed a matter in issue in the case, notwithstanding the jury may be required to pass on the fact of its execution. The verdict and judgment do not establish the fact one way or the other so that the finding is evidence. The title is in issue. The deed comes in controversy directly, in one sense, — that is, in the course taken by the evidence it is direct'and-essential; but in another sense it is incidental and collateral. It is not a matter necessary of itself to the finding of the issue. It may be
One of the main rules of estoppel by judgment reads thus: “A judgment rendered by a court of competent jurisdiction on the merits is a bar to any future suit between the same parties, or their privies, upon the same cause of action, so long as it remains unreversed; or, as otherwise phrased, the doctrine of res adjudicata is plain and intelligible, and amounts simply to this: That a cause of action once finally determined, without appeal, between the parties on the merits, by a competent tribunal, cannot afterwards be litigated by new proceedings, either before the same or any other tribunal.” 2 Black, Judgm. § 504. “It is important to be observed, in this connection, that a judgment, when offered as evidence in a subsequent litigation, is either conclusive evidence, suffering no contradiction, or it is of no effect at all; and it is not admissible as evidence of the matter on which it is offered, except where it is conclusive; that is to say, it can never be admissible as tending to prove a given fact, for if it is offered as evidence against a stranger to the former litigation it is not admissible at all, and if against a party or privy it is conclusive.” Id. § 505. “It is a general rule that a valid judgment for the plaintiff definitely and finally negatives every defense that might and should have been raised against the action; and this is true, not only with respect to further or supplementary proceedings in the same cause, but for the purpose of every subsequent suit between the same parties, whether founded upon the same or a different cause of action. A party cannot relitigate matters which he might have interposed but failed to do in a prior action between the same parties or their privies in reference to the same subject-matter; and, if one of the parties failed to introduce matter for the consideration of the court that he might have done, he will be presumed to have waiyed his right to do so. If a party fails to plead a fact he might have pleaded, or fails to prove a fact he might have proven, the law can afford him no relief. When a party passes by his opportunity the law will not aid him.” Id. § 754. The doctrine is well stated by Wells in his treatise on Res Adjudicata & Stare Decisis;
But it is urged that the homestead right is favored by the courts, and constitutes an exception to the principles of res judicata,. Now, this is matter for very serious consideration. If a judgment of a court of competent jurisdiction expressly upon the question of title or the right of possession of realty does not settle that identical question, even as between the parties to the action and their privies, then would it seem that there are no means adequate to the purpose, and that interests in realty can never be secure; and, not being able to rely upon the judgment of our courts in such matters, we can never know when our interests in realty are safe and reliable. The doctrine of favoring homesteads seems to have been carried to its greatest extent in Illinois; so it will be necessary to examine the decisions of the courts of that state to ascertain whether, in its utmost limit, it is really to the effect that a judgment expressly upon the question of title, or the right of possession, of real estate, is not conclusive as between the parties and their privies, and whether a slumbering homestead right may be resurrected to defeat the judgment. We will not quote the cases at length, which would make this opinion additionally tedious, but will try to state their substance correctly. Over 40 years ago, away back in February, 1851, it seems the legislature of Illinois yielded to their patriotic impulses, and passed a homestead law to take effect on the 4th day of July following. It exempted to the debtor, being a householder and head of a family, a homestead to the value of $1,000. About six years after-wards, in 1857, the legislature amended this, to the effect that the husband alone could not convey or incumber the homestead ; but required that the wife should join, and prescribed how the husband and wife together might incumber or convey the homestead. Under this legislation mortgages were made of homesteads, and suits were brought foreclosing such mortgages, making both husbands and wives defendants; and the court held that a decree of foreclosure in these cases, in the usual form, was not conclusive of the homestead right. The former judgment in the case at bar is not in a case of foreclosure of a mortgage; and the Illinois cases are analogous to this case only as instances of avoiding, pro tanto, in favor of the homestead right, the effect of the general language of the decree of foreclosure cutting off the right, title, and interest of defendants in such cases. The reason upon which the court founded this acknowledged innovation in the law of the absolute conclusiveness of judgments, according to their terms, was the legal disability of the wife to defend for her own right. The doctrine is stated as follows, in a leading case under this law, decided in 1863: “This mortgage as to the homestead right is like a mortgage in which the wife has not released her right
An inchoate right of dower may never become a perfect right. So long as the husband lives, and he may in any case outlive the wife, it is not available as a defense, or as a cause of action. Not so-the homestead right. It- is a present and continuing right of possession on the homestead property, so long as it is occupied as such under some statutes, or,, under other statutes, such as those of New York and Wyoming, an absolute right to-a homestead property of a certain value or its proceeds to an equal amount forever, and it is available as a defense to-an action for the possession of the property. The real foundation forthe doctrine which the Illinois court adopted was the legal disability or coverture. The cases nearly all place it on this ground. And when this disability disappears the doctrine disappears. The cases decided upon the principle under consideration, as far as they have been called to our attention or fallen under the observation of the court, were decided in 1863 and 1864. Moore v. Titman, 33 Ill. 358; Mooers v. Dixon, 35 Ill. 208; Wing v. Cropper, 35 Ill. 256. The doctrine then disappears. The latest case in which we find it mentioned is Wright v. Dunning, 46 Ill. 271, decided in 1867; and it was there stated merely to-say that it was not applicable in that case. In a very lucid and able opinion it is stated with its limitations. Having stated the general rule of the conclusiveness of judgments according to their terms, the court proceeds: “It may, however, be said that the right to hold the homestead forms an exception to the rule. It has been so held to the extent that where-the husband and wife are made parties, and they are entitled to homestead rights, and they are not relied upon, that the wife is not concluded or barred from asserting the right; and, inasmuch as she cannot sue alone for the right, that it may be asserted by the husband and wife, notwithstanding the decree or judgment. And this exception grows out of the statute' conferring the right, which declares that the husband alone cannot release the right, but that he must be joined by the wife. If a husband and wife were to make a mortgage, and the wife were to relin. quish her dower, but refuse to release her right of homestead, and when suit should be brought for a foreclosure, if that right should be cut off by the wife failing to set it up, the husband, by refusing to insist
It has been suggested, rather than argued, that the homestead right could not have been pleaded in the former action because it was inconsistent with the plea of title in Hannah Graham. How inconsistent is not apparent. Our statute recognizes the homestead right in the property of the wife as well as in that of the husband. It has been urged in argument that it was incumbent on the complainants in the former action to set up hhe homestead right of the defendants therein, and that their failing to do so was concealing it from the court, and misleading the court. This is a strange rule of pleading. Complainants cannot know and have no right to dictate what ■defendants shall rely on in defending actions. Both the title and the right of present possession in the property in -question wTas litigated in the former action. The final result of that litigation was an adjudication adverse to plaintiffs in error. It is now sought to relitigate the same matter on the ground that the plaintiffs in error had a good defense to the former action which they did not present, and that the decree was consequently-wrong, — not wrong as being an erroneous decision of the case as presented, but wrong as not being what it ought to have been if such defense had been presented. This is the condition of the matter now, however ingeniously it may be disguised. We cannot know what the judgment and decree would have been if such defense had been presented; but we do know that if any good defense had been presented and established by abundant proof, or confessed by the opposite party, and the court had erroneously ignored it. and had erroneously decided the case on other grounds, and had rendered a final judgment and decree clearly erroneous, the error could not be corrected in this proceeding. When the supreme court of the territory, the court of last resort, acted upon the matter, however erroneously, no other court could question the correctness of its decision. In short, the jurisdiction of the court in the former action is admitted, and is clear from the pleadings, and its decree cannot be collaterally attacked. It is sought in this action to have that decree declared null and void. It has not been shown to be null and void, but the contrary. It has not even been shown that it is erroneous on the case presented in that action, but erroneous because defendants had a good defense which they withheld. In the language of Wells, supra: “If one of the parties neglect or does not wish to introduce a part of his evidence when it is known to him, the issue cannot, after a final decision, be opened to enable him to do so.” And this would seem to be the rule in proceedings directly attacking a judgment, and a fortiori in cases of collateral attack. All matters of difference between the parties in interest in this action are shown by the petition to have been adjudicated in a former action. The demurrer to the petition was therefore properly sustained. The judgment is affirmed.
Ante, 211.
Rehearing
ON rehearing.
(August 22, 1892.)
All the points raised in the petition for rehearing were thoroughly discussed by counsel and decided by this court on the original hearing. The title to and right of possession in the realty in controversy were directly in issue, and were adjudicated, in the former action of Culver v. Graham, (Wyo.) 21 Pac. Rep.694.
Motion for rehearing denied.
Ante, 211.
