Markham v. DuggerMarkham v. Dugger
- Reporters:
- ,
- Before:
- Ames
Opinion by
AMES, C.Thе plaintiff, Markham, is a Cherokee freedman. In 1895 and 1896 he became indebted to one Clem Hayden. In 1900 Plаyden recovered judgment against the plaintiff, and in July, 1906, execution was issued on this judgment and levied on the lаnd in controversy. The land was sold tо the defendant. On July ST, 1908, the defendant filed an action of ejectment in the district court of Mayes cоunty against the plaintiff, seeking to rеcover the land in controvеrsy, and on January 5, 1909, recoverеd judgment against this plaintiff (the defendаnt in that case), and thereafter, pursuant to said judgment, the sheriff dispоssessed this plaintiff. Thereafter, оn the 7th day of May, 1909, this plaintiff commеnced this action of ejectment against this defendant, the plaintiff in that case, alleging that the defendant’s judgment in ejectment was void, because the land *493 in controversy was not subject to liability for thе payment of the plaintiff’s debts.
Cоnceding, without deciding, that this contention is true, it should have been asserted as a defense in the first ejectment case. It does not аppear whether it was so аsserted or not; but in either event that judgment between these same рarties, in the same kind of an action, involving the same land, is res judicata. There is no dispute about the court having hаd jurisdiction of the persons of bоth parties. There is no dispute аbout the court having had jurisdiction оf the subject-matter. In fact, the plaintiff in this case invokes the jurisdictiоn of the court to the same subject-matter; and it is so manhest that, if he has stated a cause of аction against the defendant, hе would have had a defense tо the cause of action brought by the defendant against him in the other case that it is unnecessary to discuss the matter further.
The judgment of the trial court should be affirmed.
By the Court: ‘It is so ordered.