*1 205 Arguеd October reversed December HARVEY, et al. Administrator
GETCHELL et al. (2d)
225 P. *3 Herbert W. Lombard, of Cottage Grove, argued the appellant. Neil him on the brief was
cause for With Cottage Grove. Brown, respondents. argued for
E. Immel the cause On O. Milligan, Eugene. Immel & the brief were Justice, Before Chief Rossman, Lusk, Brand, Justices. Latourette, Hay, J. HAT, Appeal Motion to Dismiss
On by Harvey, ad- as was instituted Worth This suit Capps, L. M. deceased, of the estate of ministrator Capps, Capps, L. M. quiet of said widow Elizabeth G. title to cer- plaintiffs, defendants, County, Oregon. Prior in Lane tain Capps’s he and his said wife had con- death, L.. M. (cid:127) writing to sell such claims to оne tracted County, by Wyatt. for Lane circuit court P. Dale 29, 1946, October authorized and entered made order bringing said administrator, the suit at May Wyatt. Elizabeth expense 5, 1947, On the said on March said and, 2, 1948, testate, died G. appointed Harvey, had been administrator who Worth duly estate, her substi- annexed of will with appealed plaintiff herein. Plaintiff her as tuted decree. adverse from appeal upon dismiss the have moved to
Defendants
longer
plaintiff
no
authorized to
ground
of said estates.
as administrator
act
May
Wyatt
made
appears
29, 1948,
on
that,
*4
It
of the estatе of L. M.
administrator
plaintiff, as
to
compromise
offer of
settlement
deceased,
Capps,
price
purchase
under
unpaid
anof
balance
Acceptance
sale.
such offer
author-
contract of
Capps
writing by all
the
of said L. M.
ized in
heirs
by
legatees аnd distributees under
the will of
July
Capps,
16,
said Elizabeth
on
deceased, and,
G.
authorizing plaintiff,
an order
the court entered
1948,
Capps,
L.
administrator of the estate of said M.
as
accept
Although
portions
offer.
deceased,
us
not so disclose,
assume,
of the record before
do
we
apparently
parties
concede,
and the
hereto
duly accepted
and that
claims
offer was
duly assigned
conveyed
Wyatt.
to said
plaintiff
The transfer of the interest of
adminis
during
pendency
trator in said
suit,
did not abate the
nor did it necessitate
this suit
plaintiff
that the trаnsferee
substituted as
herein.
Kennedy,
L.
v.
A.;
590,
C.
Burns
Or.
1-311,
588,
O.
Cram,
313,
v.
Or.
230P.
1102;
812;
90 P.
Smith
Ankeny
Lieuallen,
206, 223,
169 Or.
It attached to the mo plaintiff final filed his account in the L. M. tions July Capps ap The estate on 1948. account was September proved by entered but 7, 1948, order the аd discharged. He ministrator was filed his final ac Capps August estate on Elizabeth G. count approved Sep account was order entered and on 28, 1948, October 14, 1948, tember court discharging plaintiff an order administrator entered exonerating disagree his bondsmen. We with de apprоval plaintiff’s that the contention fendants’ operated in the L. M. estate account final dis formally charge He him as was not dis- administrator. *5 charged, in and, such the rule cases, is that the functions necessarily of an executor or administrator not cease do approval on settlement and his but, of final account, contrary, may, pursue on the he if occasion his arises, further for S., duties the benefit of the estate. 33 C. J. p. Executors and Administrators, 1010, 78c. We do pass upon question not, the of or if the whether plaintiff tenure of as administrator ter- should be minated, his trаnsferee would be disabled from con- tinuing the suit in the name. It is suffi- administrator’s say duty to that it the his cient is administrator’s to under the and of transferee, circumstances, therefore the that his tenure should main- estate, benefit to litigation. during pendency of the the tained authority plaintiff’s as No doubt administrаtor Capps, deceased, c. t. a. of the estate of Elizabeth G. discharge, upon appear ceased his but would to be juncture. present mining The immaterial at the claims They part of her estate. of were not assets Capps. plaintiff M. Even if of the estate of L. аssets longer qualified Capps’s as administrator of Mrs. nois of the of L. M. he still administrator estate estate, proper Capps, that the suit should be con and it is simply such. The motion is to in his name as tinued opinion, appeal. taken, In our it is not well dismiss it is denied. On the Merits sought quiet complaint herеin title in the against original plaintiffs as to certain claims, by The defendants answered defendants. claims affirmatively pleaded a general defense denial, alleged judicata. was based defense Such res L. M. Eliza- suit a former in that, facts present plaintiff’s Capps (the decеdents) in the beth County, Oregon, against circuit all court Lane answering present suit or their predecessors sought interest, therein unsuccessfully quiet title
defendants to same claims that are the subjects present suit. *6 hearing stipulated
At the herein, it that the was plea adjudication of former should be first heard and thereupon, The defendants determined. to sustain their plea, introduced into evidence the clerk’s official file of the former cause. No other evidence was offered or received. The court, on December 17, entered sustaining plea a decree the defendants’ of former adjudication, appeals and dismissed suit. Plaintiff from this decree. pleadings put allega-
The in the former suit in issue by plaintiffs tions of an elaborate scheme of con- by spiracy acquire by the defendants to fraudulent plaintiffs’ mining title means the to claims. Amongst put allega- other in issue, matters so was an that Kenneth Watkins, tion one of said defendants, pretending authority powers act to under of of attor- by given ney Capps him L. theretofore said M. and Capps, warranty had Elizabeth executed a Gr. deed convey purporting mining to certain of said claims to corporation, Mines Service, Inc., one of the defend- of one thousand ants, consideration of shares corporation, capital of stock said the stock certificate having plaintiffs, issued in the name of been L. M. Capps. alleged It and Elizabеth further authority powers had no under his of that Watkins prayer attorney deed. such to execute of the com- warranty (a) plaint that said deed asked be cancelled; ’ quieted; (b) plaintiffs mining that to the title claims be plaintiffs (c) possession “be restored of said to mining (d) accоunting be had claims”; between quantity and defendants of the and of value products and taken out said all ore mineral disposed by and sold defendants, or and that judgment plaintiffs have such might ascertained due amount to be equitable accounting; (e) such for further relief. hearing, former suit,
Thе court such after a made findings prior January of fact effect to the that, until the and thereafter execution of the said warranty plaintiff, Capps, M. Watkins, deed L. said the owner of claims; had been and that warranty said deed Watldns had executed for the said As aforesaid. cоnclusions law, consideration (1) legal did held: that Watkins not have the court authority powers attorney right said under or warranty deed, that, because of execute (2) authority, such deed was void; that, lack of *7 invalidity of deed, said the certificate because capital in cоnsideration thereof stock issued should of findings upon made no The court the cancelled. question or not the of whether were entitled quieting said their title to claims. decree to a findings upon of fact and conclusions Based cancelling a decree in effect the court entered law, of capital warranty of and said certificate stock. deed plaintiffs’ of title the made no mention The decree mining claims. appealed suit to this in said court, Capps affirmed decree. course, the v. in due
which,
213
Service, Inc.,
Mines
A
of
when
inter
jndicata,
successfully
res
plea
as a bar to further
posed,
litigation between
operates
the same
or
the extent
their
parties
privies,
it
the
adjudication
merits of the con-
upon
Abraham, 86
Crow v.
P.
troversy.
99, 103, 167
Or.
590;
et al. v. Neace-Stark
et
Haney
al.,
Co.
109
93, 120,
Or.
190; Adams v.
216 P.
219 P.
Perry,
757,
168
132,
Or.
v.
111 P. 2d
119 P. 2d
Swingle Medford
581;
Dist.,
121
Irrigation
221, 223,
Or.
“ iippg judgment the upon mеrits when it a declaration of amounts to the law as to the respec tive and duties of the rights parties, based on the or of facts ultimate facts state disclosed by the and evidence which upon pleadings, right technical, recovery depends, irrespective formal, оr or contentions’: 5 dilatory objections Words & ” Crow v. Phrases, Words & Phrases, [27 147] Abraham, 86 Or. P. 590. supra, 99, 103, 167 the court found that
Although
L.
claims were owned
M.
to the
execution
prior
deed
delivery
by Watkins,
only matters,
which were
actually litigated
determined
and certificate of
deed
stock should be cancelled.
suсh matters
was the
alone
decree
Upon
former
one. Cromwell v.
in the
suit conclusive
County
present
Sac,
94 U. S.
L. Ed.
Hill,
Stillwell v.
195;
169 P. 1174. The former
112, 116,
87 Or.
suit was
did
“ground
determined
which
go to the
claim of paramount
of plaintiff’s
title,
merits
[and]
therein does
decree rendered
not bar
this suit.”
Anderson,
Barnes v.
108 Or.
217 P.
836. See
Kennedy,
v.
P. 49 Or.
also Burns
588, 590,
Hull,
267, 271,
Jur., 914, 172. It would have been competent for the in the former suit complaint have united in the same a cause of suit for warranty constituting cancellation deed, upon mining a cloud their title to the claims, with quiet § cause of suit to title to the 9-115, claims. they actually join L. A. O. C. What did was tо the two causes of suit as one cause. This no was, doubt, a misjoinder having of causes, but, the defendants made objection misjoinder, hearing no such thereto, after a upon Oregon is merits, deemed to have been waived. v. Portland Co., General Electric 52 502, Or. 513, misjoined P. P. 160. 722, 98 The causes thus еntirely separate. require It is obvious that it would different evidence sustain them, and therefore a upon decree based one of them, as was the decree in present former cannot in suit, be invoked bar of the upon which based suit, is the other. Am. Jur., Actions, Judgments, p. p. § § 30 Am. Jur., appаrent upon It is face decree in the former suit that title to the only quieted, “actually was not but was not necessarily necessary included therein or thereto.” having § L. A. 2-721, Ü. C. There been no final and determination in the former conclusive suit of the present upon cause of suit which the one is based, present therein is not conclusive of the decree suit. Ry. Co., Ruckman v. Or. 78 P. Union present plain R. A. L. A. The 2-718, 69 L. O. C. representative capacity, in entitled his to seek tiff, independent proceeding relief this issue in the former suit. Masterson v. not determined Pacific 24 P. Co., 396, 403, 144 Or. 2d 1046. Live Stock judicata may res not be rule invoked
215 respect former not determined in a of suit of a cause applicable equally issue of fact raised an action, not determined. in suit but a former “* * * Certainty element, is an essential and necessarily judgment shown that unless it is sought fact to be a involved determination there will be no bar. suit, in the second concluded Judgments, § Littleton, on 691; Coke Freeman on (Cal. Campanella App.) Campanella 265 v. 352b; P. 327.” 97 610, Me. A. 351, 133 177 Davis, Susi A. L. R. 1225. 1222, supra, Haney al., also et al. v. Co. et
See Neace-Stark 757, 219 93, 111, 123, 125,216 P. P. Nashua 109 Or. Corp., Corp. 164 Mass. 41 L. R. v. Boston L. R. & Rep. v. Bru N. E. 49 Am. St. Gronseth Am. Jur., D. N. bakken, 189, 190; 56 S. 228 W. Judgments, p. p. § § 931, 185; S., C. J. 927, 181; Id., Appeal p. Error, and having
The court in the former suit failed to deter- quieting plaintiffs’ mine the issue of defendants title, here insist that such failure to a refusal to amounted They grant prayed for in that connection. the relief argue that such refusal was in itself a final and con- agаinst plaintiffs. issue clusive determination of the judge present entering in cause, The trial before appealed opinion from, filed a memorandum the decree referring part, former suit, said, to the he in which, follows: attorneys that “It is noticeable Findings, and Conclusions Decree submittеd to the they signed, if had been Court, which would Circuit plaintiffs. quieted title in the have Findings, principally objections on filed the to ground was not sufficient that there evidence apparently agreeing support the Court, them, sign did not did defendants, them, with the but sign Findings, not other different which did findings quieted include the that the title should be plaintiffs. * * “* actually litigated That the matter was at that the re- least, to such extent quested findings in favor thereon, their make after defend- them, the Court declined to objected ants the evidence thereon was sufficient. In other words the matter was com- plaintiffs, pletеly heard and determined finding negative finding or lack at least plaintiff, after such had been submitted for and * * *” *10 writing. requested in may in be which a failure to make
There cases finding upon may equivalent any an issue the at all be negative finding but we do not thereon, of an actual impossible a It to tеll that this is such case. think why the from the record the court in former suit failed question finding in or to determine the is to the make may finding that the that he sue. He have considered respecting plaintiff the title of the L. M. make did mining finding. a claims was sufficient He to the may felt that the evidence not sufficient to have was making any finding justify him in the issue. He may pleadings justify that not a have considered the did quieting plaintiffs’ point, title. As to the last we decree complaint allege, that the failed to either observe inferentially, directly that the or claims were possession of another”. a in the аctual This is “not quiet allegation § necessary in a suit to title. 9-1001, complaint matter fact, L. A. As a the O. C. susceptible that of the construction the prayed possession defendants, as it in the were possession have the should thereof that the having failed them. The to to restored aсtually in former suit found the decree the show that quieting plaintiffs therein, title issue of adjudication. plea they of former their to sustain failed § Judgments, p. Jur., 997, 283. 30 Am. if that, is contended
But it not the decree there satisfied with the former suit appealed they It is true that should have therefrom. in, (but seemingly only one it has been court: held App. 488) Stockton, v. Tenn. Ch. Chandler adjudicate may equivalent refusal of to court negative judgment or so as authorize an decree, of a general appeal. however, The such failure rule, is that judgment and not final to such issue, renders subject apрeal Chrislip v. thereon. therefore E. First Nat. Bank 43 W. 27 S. Teter, 292; Va. Tex. Stucken, A., 37 S. W. Mason Vander Civ. of 170; Appeal p. § J., Error, S., C. J. 3 C. p. p. § Appeal Error, opinion are of the court erred We trial adjudication. sustaining prior plea of the defendants’ reversed, costs, decree is with and the cause is hearing on merits. remanded