Am. Bank & Trust Co. of Ardmore v. Frensley

• Decision Date: 27 February 1934
• Docket Number: Case Number: 21100
• Citation: 167 Okla. 533,1934 OK 114,30 P.2d 883
• Court: Oklahoma Supreme Court
• Parties: AMERICAN BANK & TRUST CO. OF ARDMORE, OKLA., et al. v. FRENSLEY.

1934 OK 114

30 P.2d 883

167 Okla. 533

AMERICAN BANK & TRUST CO. OF ARDMORE, OKLA., et al. v. FRENSLEY.

Case Number: 21100

Supreme Court of Oklahoma

Decided: February 27, 1934

Syllabus

¶0 1. Mortgages--Petition by Defendant to Vacate Sale Under Foreclosure--Petitioner's Ownership of Interest in Land as Issue for Basis of Judgment.

It is a condition precedent to the vacation of a sale of real estate under a mortgage foreclosure on a petition by one against whom the judgment was rendered, that he plead and prove that he owned some interest in the land, and where he alleges ownership and the trial court finds that he is the owner, a judgment based thereon is within the issues in the case.

2. Judgment--Res Judicata--Conclusiveness of Judgment Upon Facts Adjudicated or Which Might Have Been Presented--Collateral Attack.

In the trial of a cause by a court of competent jurisdiction, its decree upon the merits is conclusive between the parties, upon all the facts adjudicated, together with all the material facts which might have been presented as constituting the claim or defense; and such issues of fact so adjudicated or which might have been presented for consideration, cannot thereafter become the subject-matter for litigation in a collateral proceeding between the parties, or those in privity.

3. Same--Conclusiveness of Judgment for Plaintiff as to Defenses.

It is a general rule that a valid judgment for a plaintiff is conclusive, not only as to defenses which were set up and adjudicated, but also as to those which might have been raised.

4. Same--Scope of Estoppel by Judgment--Ground of Judgment.

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 might 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.

5. Same--Failure to Plead Judgment as Defense as Waiver of Claim--Claim Barred by Second Judgment.

A failure to plead a final judgment at a time when the pleading thereof would constitute a defense to an action is a waiver of that claim, and the final judgment in the second case operates as a bar of such a claim.

6. Same.

Record examined, and held, that a failure to plead in an action in the district court of Carter county a judgment that had been rendered in the district court of Johnston county operated as a waiver of the judgment of the district court of Johnston county, and the judgment rendered by the district court of Carter county is conclusive in a second case in the district court of Carter county between the same parties and those in privity with them.

Appeal from District Court, Carter County; John B. Ogden, Judge.

Action by Tom B. Frensley, executor of estate of B. F. Frensley, against the American Bank & Trust Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Potter & Potter, for plaintiffs in error.

Stephen A. George, for defendant in error.

ANDREWS, J.

¶1 On the 18th day of October, 1929, the district court of Carter county, Okla., rendered a judgment in favor of the defendant in error against the American National Bank of Ardmore, Okla., Frank Knappenberger, and C. F. Washburn, for the possession of certain described real estate, quieting the title thereto, and for the rental value of the use and occupation of the land. That judgment was based on the finding therein recited that the plea of res judicata relied on by the plaintiff in that action, the defendant in error herein, was well taken; "that all matters involved herein as to the question of ownership and title to the lands described in plaintiff's petition and hereinafter described, have heretofore been finally and fully judicially determined by a court of competent jurisdiction, to wit, by the judgment and decision of the Supreme Court of this state in cause No. 18256, in that court, wherein plaintiff's testator, B. F. Frensley, now deceased, was plaintiff in error and the American National Bank of Ardmore et al, were defendants in error, and the judgment of this court made and entered herein on the 28th day of March, 1928, in pursuance of the mandate and judgment of the Supreme Court aforesaid; and that said judgment and decision is final and binding and constitutes and is res adjudicata of the issues involved herein, and that said judgment is a complete bar to the defendant's claim to the ownership of said lands." From that judgment the defendants in that action, the plaintiffs in error herein, appealed to this court.

¶2 Herein the plaintiffs in error contend that B. F. Frensley never had any title to the property in controversy; that no issue as to the title of the property was raised in the trial court in the former action, and that the judgment referred to in the findings of fact hereinbefore quoted was void for the reason that it was beyond the issues raised by the pleadings or proof in the former action.

¶3 The issue presented requires an examination of the record in the former proceeding. That record shows that the American National Bank commenced an action, numbered 10052, in the district court of Carter county, Okla., against Robert F. Scivally and others, including B. F. Frensley; that in its petition it alleged, among other things, the execution by Robert F. Scivally and wife, of certain notes and mortgages of real estate securing the payment thereof, and that B. F. Frensley had or claimed to have some right, title, or interest in and to the real estate, but that whatever claim of title B. F. Frensley had was inferior to the plaintiff's claim and subsequent to the plaintiff's mortgage; that an answer thereto was filed for B. F. Frensley, in which it was alleged that B. F. Frensley claimed title to the land which is involved in the present action, through a deed from Robert F. Scivally, which was dated prior to the execution of either of the mortgages held by the bank, and the prayer was that the title of B. F. Frensley be quieted; that a judgment was rendered therein for the foreclosure of the mortgage first in time, in which it was recited that B. F. Frensley was the owner of the land involved in the present action, subject only to that mortgage, and in which the order of sale provided for a sale so as to protect the title of B. F. Frensley against the claims of the bank, in so far as it could be protected under that finding of fact; that a judgment was rendered therein for the foreclosure of the mortgage second in time, in which it was recited that the defendant Hamilton Carhart Cotton Mills had a valid judgment lien on all land involved in that action, "except those lands above described found to be the property of B. F. Frensley", and that the defendant William Echols Dry Goods Company had a valid judgment lien upon all land therein described, "except those lands above found to be the property of the defendant B. F. Frensley," that judgment providing for a sale of the land in satisfaction of the mortgages of the plaintiff in that action by "offering first the lands other than those as above found to be the property of the defendant B. F. Frensley," and for a sale of the land in satisfaction of the first mortgage without regard to the ownership of B. F. Frensley; that the land was sold in conformity with the judgments and purchased by the bank; that thereafter B. F. Frensley filed therein a verified petition, in which he petitioned the court

"* * * to vacate, set aside and hold for naught an order approving sheriff's sale made and entered herein on the 21st day of September, 1923, approving the sale of certain real estate described in said order, which order is hereby referred to and by reference made a part of this petition as fully as if copied herein in full; and further this defendant petitions the court to vacate, set aside, and hold for naught an order approving sheriff's sale made and entered herein on the 22nd day of November, 1923 * * *"--that thereafter he filed an amendment to his petition, in which he alleged that he had not been served with summons in the original action; that thereafter the bank answered the petition and amendment of B. F. Frensley and alleged, with reference to the judgment in the foreclosure proceedings, that "* * * judgment in said action was duly entered on the 13th day of February, 1923, adjudicating the rights of the parties and decreeing the foreclosure thereof"; that the foreclosure proceedings were regular in every respect, and that it vested the title to the land in the bank. It denied the other allegations of B. F. Frensley and it prayed that B. F. Frensley take nothing and "that its title to said property be quieted and for all such other and further relief as to the court may seem just and equitable"; that on the trial of the proceeding to vacate those orders, a witness called on behalf of B. F. Frensley was asked if he know whether or not B. F. Frensley was the owner of the land claimed by him, whereupon the attorney for the bank objected, as follows: "We object to any evidence touching that matter, as that is res judicata", and the court sustained that objection; that the deed under which B. F. Frensley claimed title was offered in evidence, and the attorney for the bank objected "* * * for the reason it is res judicata" as to the parties to this tract of land, "it is part of the proceedings in the original case"; that a judgment was rendered in which it was found that the bank had asked for affirmative relief and

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