138 P. 1029 | Okla. | 1913
On the 15th day of March, 1906, the Union Central Life Insurance Company instituted an action in the district court of Woods county, Oklahoma Territory, in which Andrew J. Williams, Tallie Williams, D. Puffinbarger, Rilla Puffinbarger, the Geiser Manufacturing Company, G. J. McDuffie, Jacob G. Winne, and Scott E. Winne, partners as Winne Winne, were named as defendants. The action was to foreclose a mortgage on a tract of land, situated in said county, given to secure a note executed to the plaintiff by defendants Williams and wife. In the petition it was charged that the remaining defendants had, or claimed to have, some interest in the mortgaged premises, which it was asserted were junior and inferior to plaintiff's said mortgage. The defendant McDuffie filed therein his answer and cross-petition, and asked to have foreclosed a mortgage on said lands, executed to him by his co-defendants, D. Puffinbarger and Rilla Puffinbarger, admitting in his said cross-petition the priority of the mortgages held by the Union Central Life Insurance Company and Winne Winne, and in which it was asked that the pretended claims or liens of Williams and wife and the Geiser Manufacturing Company be extinguished and held for naught, and they forever barred of any right, title, or interest in and to said premises. The defendant Geiser Manufacturing Company, being a nonresident, was not served with summons, but an attempt was made to obtain service by publication. No appearance was entered by said defendant, and on the 9th day of December, 1907, the case coming regularly on for trial, judgment was rendered in behalf of the plaintiff Union Central Life Insurance Company foreclosing its mortgage, and also foreclosing the mortgages held by Winne Winne and McDuffie, and the latter being found to be inferior only to that of the plaintiff therein and the defendant Winne Winne; the court further finding that the Geiser Manufacturing Company, *490 although duly and legally summoned to appear, was in default, and, it was determined, had no interest or claim in or to the premises sought to be foreclosed.
The present action was filed in the district court of Alfalfa county on the 30th day of June, 1909, and the Puffinbargers, McDuffie, the Union Central Life Insurance Company, and Y. G. Patterson were made parties defendant, though no summons was ever served on the two defendants last named. Plaintiff's action was brought to foreclose a certain alleged mortgage, executed to it by the Puffinbargers, on the same land involved in the original foreclosure suit, brought in the district court of Woods county, by the Union Central Life Insurance Company. In its petition it asks to have its mortgage declared superior and paramount to any interest, lien, or claim of the defendant McDuffie.
On February 11, 1910, the defendant Geiser Manufacturing Company filed in the district court of Woods county its motion to vacate and set aside the judgment rendered against it on December 9, 1907, as well as to the sheriff's deed and the decree of confirmation, subsequently made and entered in said action. On the 6th day of May, 1910, said motion was overruled. No appeal from this order was ever prosecuted, nor was any further attempt made in said original proceedings to vacate or set aside the original judgment.
On the 10th day of March, 1911, in the present action, judgment was rendered, foreclosing the mortgage of the Geiser Manufacturing Company, and decreeing that the defendant McDuffie was without right, title, or interest in and to said lands, senior and superior to plaintiff's right, except as assignee of the Union Central Life Insurance Company and Winne Winne. This, presumably, from the fact that McDuffie had purchased the land at the foreclosure sale held in Woods county, and that said last-named mortgagees had received, on account thereof, the full amount of their claims.
In the motion to vacate and set aside the judgment filed in the district court of Woods county, the defendant in error Geiser Manufacturing Company charged that the pretended service by publication against it was null and void, and of no effect, for the *491 reason that no sufficient affidavit, upon which to base service by publication, was at any time filed in the original case prior to the rendition of judgment therein barring and foreclosing it of its right, title, and interest in and to the premises in question; that no other service of summons was made or attempted, and no appearance entered by it in said proceedings. To the present action defendant McDuffie answered, pleading, in bar of plaintiff's right to prosecute its action, the judgment rendered by the district court of Woods county on May 6, 1910, overruling and denying the motion of the Geiser Manufacturing Company to vacate and set aside the judgment theretofore rendered against it in that court. The amended answer sets out in extenso the pleadings, judgment, motion, and final judgment overruling motion, as tending to show the former adverse adjudication of plaintiff's claim. The plaintiff filed both an original and an amended reply, but in neither of them was issue taken with the defendant's allegation of what occurred in the district court of Woods county. In both the original and amended replies it was contended that the judgment rendered against it by the district court of Woods county was void and of no force or effect, by reason of the fact that the publication notice was based upon an insufficient, defective, and void affidavit, and that at no time had it any knowledge of the pendency of the original action, and by reason thereof the judgment rendered against it was a nullity.
The land sought to be foreclosed by the several mortgagees was situated in that part of Woods county which, upon the advent of statehood, became a part of Alfalfa county (section 326b, Williams' Ann. Const. Okla.). The action, being one pending in a district court of Oklahoma Territory, at the time said territory became a part of the state of Oklahoma, and not being transferred to the United States court, was properly proceeded with, held, and determined by the district court of Woods county. Section 3, Amendment to Enabling Act (chapter 2911, 34 St. at L. 1287); section 27, art. 25, Constitution.
It is contended by plaintiff in error: (1) That, regardless of the sufficiency in the first instance of the affidavit upon which *492
the publication notice was based, the Geiser Manufacturing Company, by filing its motion to vacate and set aside the judgment, sheriff's sale, and decree of confirmation, thereby entered its appearance and validated all previous proceedings had in said action; (2) that whether or not the said motion was general or special, it having been decided adversely to defendant in error, and no appeal therefrom prosecuted, the judgment of the district court of Woods county was final and could not subsequently be collaterally attacked in the Alfalfa county district court. The first question presented has often been before this court, and many of the authorities are reviewed in Ziska v. Avey et al.,
But we deem it unnecessary to determine whether the motion in the instant case was properly confined to the question of jurisdiction, for it is our opinion, as we shall presently see, that the judgment of the district court of Woods county, being properly pleaded in bar, was res judicata to the action brought and then pending by the Geiser Manufacturing Company to foreclose its mortgage in the district court of Alfalfa county. To meet the plea of res judicata, it is urged by counsel for defendant in error that the district court of Woods county, in passing upon its motion to vacate the original judgment rendered against it, was not required to determine the validity of the affidavit for publication, as against a party shown to be a foreign corporation, having a regularly appointed resident agent, but that it was only required to determine whether the affidavit, upon which the publication notice was based, was good upon its face, and that in fact the court could not tell from the pleadings of either party whether the Geiser Manufacturing Company was a corporation, and therefore that the corporate existence of the manufacturing company, its appointment of an agent, or its domicile, were not in issue there, and were not determined. True, the motion to vacate and set aside the judgment does not appear to be predicated upon the particular objection that the affidavit for service by publication did not charge that defendant corporation had failed to comply with the statutory requirements, permitting it to do business in the territory of Oklahoma, *493
including the designation of an agent upon whom service of summons might be had, as was held mandatory by this court inNicoll et ux. v. Midland Savings Loan Co.,
The essence of estoppel by judgment is that there has been a judicial determination of a fact, and the question always is, *494 has there been such determination? and not, upon what evidence or by what means was it reached? The facts conferring jurisdiction upon the Woods county district court had been judicially determined, and it is immaterial that reasons may have existed why this adjudication should not have been made as made, as the controversy was determined.
The leading case upon the question of to what extent a former adjudication may be pleaded in bar is that of Cromwell v. SacCounty,
"In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Thus, for example, a judgment rendered upon a promissory note is conclusive as to the validity of the instrument and the amount due upon it, although it be subsequently alleged that perfect defenses actually existed, of which no proof was offered, such as forgery, want of consideration, or payment. If such defenses were not presented in the action, and established by competent evidence, the subsequent allegation of their existence is of no legal consequence. The judgment is as conclusive, so far as future proceedings are concerned, as though the defenses never existed. The language, therefore, which is so often used, that a judgment estops, not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented, is strictly accurate, when applied to the demand or claim in controversy. Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever." *495
Fayerweather v. Ritch,
The question presented is not a new one in this court. InWoodworth v. Town of Hennessey, supra, we said:
"A fact or question which is actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judgment therein, so far as concerns the parties to that action, and persons in privity with them, and cannot be again litigated in any future action between such parties or privies, in the same court or in any other court of concurrent jurisdiction, upon the same or a different cause of action."
It was also said, quoting from Commissioners of Marion Countyv. Welch,
"A judgment is conclusive of all matters actually litigated, and as to all matters that might, under the pleadings, have been litigated."
In City of El Reno et al. v. Cleveland-Trinidad Paving Co.,
"The judgment in a former action, involving the same subject-matter, is conclusive, not only as to defenses which were permitted in such action, but also as to all defenses which might have been but were not presented."
Other Oklahoma cases are Territory ex rel. Jones, CountyAttorney, v. Hopkins,
The issue of jurisdiction, having been submitted and finally determined, cannot again be opened up on account of some new ground, tardily urged, and which might have been presented at the original trial. There must be some end to litigation.
As was said in Aurora City v. West, 7 Wall. 82, 19 L.Ed. 42:
"The doctrine of estoppel by former judgment between the same parties is one of the most beneficial principles of our jurisprudence, and has been less affected by legislation than almost any other."
The sale made by the sheriff of Woods county, the order of confirmation, and the sheriff's deed, made to plaintiff in error, were void under authority of Farmers' State Bank ofIngersol v. Wilson et al.,
For the reasons given, plaintiff below was entitled to no relief, and the judgment of the trial court should be reversed.
By the Court: It is so ordered. *497