Cherry v. Godard

• Decision Date: 22 December 1936
• Docket Number: Case Number: 21875
• Citation: 1936 OK 835,179 Okla. 158,64 P.2d 315
• Parties: CHERRY v. GODARD
• Court: Oklahoma Supreme Court

1936 OK 835

64 P.2d 315

179 Okla. 158

CHERRY v. GODARD

Case Number: 21875

Supreme Court of Oklahoma

Decided: December 22, 1936

Syllabus

¶0 1. JUDGMENT - Plea of Res Judicata or Estoppel by Judgment - Decision on Homestead Character of Land Sought to Be Impressed With Payment of Debt.

When an issue of law or fact is once tried upon the merits and finally decided by a court of competent jurisdiction having jurisdiction of the subject-matter and of the parties and the power to decide the issue, the same question cannot thereafter be retried and decided differently in another subsequent and different action between the same parties, provided, of course, the plea of res adjudicata or estoppel by judgment is properly presented by the pleadings. The issue of whether land sought to be impressed with the payment of a debt is of a homestead character and as such beyond the reach of the creditor is no exception to this general rule.

2. SAME - Finality of Decision Dependent on Jurisdiction Rather Than on Correctness of Decision.

The finality of a judicial decision depends upon the jurisdiction of the court and the existence of power to make the decision rather than the correctness of the decision rendered.

3. SAME - Final Decision Making Debt a Charge Against Property Claimed to Be Exempt.

Where the principal litigation, as distinguished from ancillary proceedings, has, for one of its objects, the subjection of the particular property to the payment of a debt, and the effort to subject such property to the payment of a debt is resisted upon the theory that the property is exempt, the decision of a court making the debt a charge against the property is a final and conclusive determination of the issue and precludes a successful effort in subsequent litigation to relieve the property of the burden this imposed.

4. SAME - Finality of Decision That Contract Authorizes Sale of Land Without Appraisement in Satisfaction of Debt.

When in an action upon a contract particular land is sought to be subjected to the payment of a debt, the court is, by virtue of section 451, O. S. 1931, possessed of the judicial power in rendering judgment to determine whether the contract is such as to authorize a sale without appraisement. If it so decides, its decision is final unless it fails to make a specific finding that the contract contains the words "appraisement waived", or words of similar import, and a presumed finding to that effect would be affirmatively disputed by the judgment roll.

Appeal from District Court, Lincoln County; Hal Johnson, Judge.

Action by Russell Godard and another against J.W. Cherry and another to set aside a sheriff's deed and recover possession of real estate. Judgment for plaintiffs. Defendants appeal. Reversed and remanded.

Cox & Cox, for plaintiffs in error.

Erwin & Erwin, for defendants in error.

BUSBY, J.

¶1 Edward E. Godard died in 1916, or prior thereto, leaving as his heirs his wife, Odia C. Godard, and seven minor children. At the time of his death he owned an 80-acre tract of land, the title to which passed to his wife and children, 7/21 to the wife and 2/21 to each of the children. Later the wife's interest was increased to 9/21 by reason of the death of one of the children whose interest she acquired by decree of distribution in connection with the administration of the deceased child's estate. In connection with the administration of the estate of Edward E. Godard the 80-acre tract was set aside as a probate homestead. When in the subsequent portions of this opinion we refer to the land, such reference will be understood to allude to this particular tract of land.

¶2 Mrs. Godard remarried in 1919, becoming Mrs. Butler. Since her remarriage she has never lived on the land in question. In fact, during a portion of the time she lived outside the state of Oklahoma.

¶3 On the 2nd day of January, 1923, Mrs. Butler executed and delivered a promissory note to J.W. Cherry for the principal sum of $281.25, together with interest thereon at the rate of 10 per cent. per annum. The note recited that the consideration for which it was given was material furnished for and used in the construction of a dwelling house on the above-mentioned land. It also contained a waiver or purported waiver of the appraisement laws of the state.

¶4 In 1926 J.W. Cherry commenced an action in the district court of Lincoln county. He sought a money judgment on the note and specifically pleaded the consideration recited in the face of the note. A copy of the note was attached to the petition. At the commencement of the action the land was attached and service obtained upon Mrs. Butler by publication upon the theory that she was then a nonresident of the state. Mrs. Butler entered her appearance for the purpose of defending the action and presented a counterclaim for damages for alleged wrongful attachment. Her defense and cross-demand were unsuccessful. The case was tried and resulted in a judgment against her for the amount due on the note and decreeing the land to be subject to the payment of the debt and ordering the sale thereof without appraisement after the expiration of six months from the date of the judgment. A more detailed analysis of this judgment and the pleadings upon which the same was predicated will be made hereafter.

¶5 In connection with the ancillary attachment proceeding, Mrs. Butler presented a motion to dissolve the attachment based in part upon the alleged exempt character of the land. The motion was denied. No appeal was taken by Mrs. Butler from either the adverse judgment above referred to or the order refusing to dissolve the attachment. Both became final for such effect as they may be entitled to under the principle governing res adjudicata and estoppel by judgment.

¶6 After expiration of six months from the date of the judgment a special execution was issued and a 9/21 interest in the land belonging to Mrs. Butler was sold pursuant to the judgment in the manner provided by law for sales of land on execution without appraisement. J.W. Cherry, the judgment creditor, became the purchaser, and, on his motion, the sale was confirmed by order of the district court of Lincoln county. No appeal was taken from the order of confirmation. The purchaser entered into possession of the premises through Bill Dunker, a tenant.

¶7 Thereafter and on the 24th day of May, 1929, Mrs. Butler, joined by one of her children, Russell Godard, who was still a minor, commenced this action in the district court of Lincoln county against Mr. Cherry and his tenant. She sought to cancel the sheriff's deed, recover possession of the land, and quiet title thereto. The theory of her action was that the execution sale and the deed executed pursuant thereto were void for want of appraisement of the land sold and was also void by reason of the alleged exempt character of such land arising from its asserted classification as a homestead. The defendant, Cherry, and his tenant resisted the action in part upon the theory that the issues tendered by the plaintiff had been finally and conclusively adjudicated adversely to her in the prior litigation, and therefore could not be relitigated in this action. The defendant also caused the remaining Godard children to be made parties defendant in this action and sought by way of cross-petition to partition the land.

¶8 On the trial of this case in the court below the plaintiffs were partially successful. The sheriff's deed was declared void and judgment for possession of the premises was entered. However, title was not quieted in the plaintiff as against J.W. Cherry, from which it may be inferred that the trial court regarded the prior judgment as a continuing lien upon the property, and from which the further inference may be drawn that the basis of the trial court's decision was the want of appraisement in connection with the execution sale, rather than the asserted nonliability of the land by reason of its alleged homestead character.

¶9 J.W. Cherry and his tenant bring the case to this court on appeal, appearing herein as plaintiffs in error. They rely for reversal upon the asserted conclusive determination of the issues in the prior proceeding.

¶10 Perhaps the best method of approaching the problem is to eliminate those steps in the prior procedure which under our decisions are insufficient or of doubtful sufficiency to constitute a final determination of the issues involved in this case. We will then be free to determine the more debatable questions. We shall also reserve for later treatment questions relating to the identity of the parties to the two actions.

¶11 The order refusing to dissolve the attachment and thus denying the defendant's contention that the property was exempt from satisfying the debt involved in the prior action did not constitute a conclusive determination of the question of exemption. See Shelby v. Ziegler, 22 Okla. 799, 98 P. 989; Brunson v. Merrill, 17 Okla. 44, 86 P. 431; Cross v. Inge, 105 Okla. 145, 231 P. 1066. This view was adopted in this state upon consideration of judicial decisions of the state of Kansas, from which our applicable statutes came. Its soundness was questioned at the time of its adoption, but it represents the established law of this state and will not be departed from at this date. Shelby v. Ziegler, supra. Similar considerations seem to govern in determining the effect of orders in garnishment proceedings. State National Bank v. Lokey et ux., 112 Okla. 82, 240 P. 101. Both of these proceedings to which this court has refused to give the effect of res adjudicata are ancillary proceedings, as distinguished from the main or principal action. The foregoing decisions do not deal with issues raised and decided in the principal or main action, as distinguished from such ancillary proceedings.

¶12 The question of sale without appraisement in this action was not involved in the ancillary proceeding to dissolve attachment, and the order entered therein...