99 P.2d 871 | Okla. | 1940
In 1935, J.E. Poarch, one of the plaintiffs in error here, brought suit against the defendant in error, D.A. Finkelstein, and others to enjoin the defendants from removing or interfering with a quantity of oil well casing alleged by the plaintiff in his petition to be owned by him.
In his answer in that case the defendant Finkelstein denied generally the allegations contained in the plaintiff's petition, asserting ownership of the property in himself. On the trial to the court, upon the issues presented by the pleadings and the evidence adduced thereon, a general, final judgment was rendered in favor of the plaintiff. On appeal to this court the cause was reversed and remanded under the following opinion:
"Plaintiff in error filed petition in error with case-made attached on the 27th day of January, 1936, and on the 7th day of April, 1936, filed brief which reasonably supports the allegations of the petition in error. Defendant in error has filed no brief, nor offered any excuse for such failure. *524
"The cause is, therefore, reversed and remanded, with directions to vacate the judgment granting the permanent injunction and to enter judgment for the defendant." (Finkelstein v. Poarch,
Obviously, the cause was reversed under the rule that this court is not required to search the record to find the theory on which judgment of the trial court may be sustained, but may reverse the cause with directions, where defendant in error has neither filed brief nor offered any excuse for failure to do so and the plaintiff in error has served and filed brief in compliance with rules of the court in which authorities cited appear reasonably to sustain assignments of error. McDonald v. Dooley,
In the case here under consideration Finkelstein brought suit against Poarch and others on the injunction bond given in the former action alleging in his petition that he had been damaged by reason of the granting of the injunction. In their answer the defendants denied generally the allegations of the petition; pleaded ownership of the casing and by cross-petition claimed damages by reason of plaintiff's acquisition of the oil well casing. On the trial, conforming to a jury verdict, judgment was rendered in favor of the plaintiff for $557.50 and costs. On defendant's motion, a new trial was granted on the ground that plaintiff's evidence was insufficient to sustain claim of $270, representing attorney's fee and other expenses of trial asserted by plaintiff in his petition. On plaintiff's motion, which included a remittitur of $270 of the judgment, the trial court vacated its order granting a new trial and entered judgment in favor of the plaintiff for $287.50.
The principal ground urged by the defendants for reversal of the judgment is: That the trial court erred in excluding evidence of their ownership of the casing offered in support of the allegation in their cross-petition; thus taking issue with plaintiff's contention that the question of ownership of the casing was adjudicated in the injunction case.
We have held that before injunctive relief will be granted the plaintiff must prove title to the property involved or some interest therein. Jacobs v. American Bank Trust Co. et al.,
In Mundell et al. v. Colony Mercantile Co., supra, under the facts there existent, we held in the syllabus:
"A plea of res judicata is an affirmative defense, which must be pleaded and proved."
"The owner of property, the legal title to which has been conveyed to another in trust for the owner and which has been attached in an action against the trustee, may not enjoin a sale of the property attached, for the reason that he has a plain, adequate, and complete remedy at law by intervention in the attachment proceedings. But the fact that he attempts to enjoin the sale of the property attached, and fails by reason of the fact that he has a plain, adequate, and complete remedy at law by intervention in *525 the attachment proceedings, does not deprive him of his ownership of the property or estop him from asserting his ownership thereof in any proper proceeding."
In that case, however, it appears that the owner of the property was not a party to the action between the creditor and the trustee. That point is emphasized by the following language appearing in the body of the opinion:
"The trial court refused to permit any evidence as to the ownership of the property, and therein the trial court was in error. Evidence thereof was competent, and should have been admitted, though the plea of plaintiff of res adjudicata, as stated in its reply, was sustained, for a plea of res judicatais an affirmative defense which must be proved. Wade v. Hope
Killingsworth,
Also failure to plead adjudication appears to have been an issue in the Mundell Case. That case is cited in American Bank Trust Co. of Ardmore et al. v. Frensley,
"It was contended that that adjudication was final and conclusive. There can be no question but that if the decree of the district court of Johnston county was an adjudication, final and conclusive, it could have been pleaded as a defense to the petition of B.F. Frensley to vacate the orders in the foreclosure proceedings. The failure to plead the decree at a time when the pleadings thereof would have been a defense to the action to vacate the orders in the foreclosure proceedings amounted to a waiver of that claim. Mundell v. Colony Merc. Co.,
"When a fact has been determined in the course of a judicial proceeding, and a final judgment has been rendered in accordance therewith, it cannot be again litigated between the same parties without virtually impeaching the correctness of the former decision, which, from motives of public policy, the law does not permit to be done. The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps, or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis on which it stands, upon the obvious principle that, where a conclusion is indisputable and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion. Johnson v. Gillett,
In Cosden Pipe Line Co. v. Voss, supra, we held that where plaintiff sued for injunction to prevent defendant from threatened wrongful use of armed force and violence against plaintiff, and its agents, that in such action, the defendant could not litigate claim for money judgment for damages to crops and real estate; and in Fort Worth Lead Zinc Co. v. Robinson, Ex'r, et al., supra, in deciding the principal question involved, we held that the defendant, in an action on a promissory note, may plead and prove, as a counter action, any cause of action he may have against the plaintiff, arising out of the cause of action alleged in the petition or connected therewith.
We are of the opinion that the authorities relied upon by the defendants are not controlling under the facts involved in the present case. Generally, the rights and liabilities of the parties to an injunction bond are fixed when it is finally determined that the injunction ought not to have been granted. 32 C. J. 452, paragraph *526
782. Revell et al. v. Smith et al.,
The remaining propositions argued by the defendants refer generally to the amount of damages recovered. We have examined the record on this point and conclude that the sum allowed in the final judgment is amply sustained by the evidence.
The judgment is affirmed.
BAYLESS, C. J., and RILEY, GIBSON, and HURST, JJ., concur.