City of Oklahoma City v. Frank Master

• Decision Date: 20 February 1905
• Docket Number: No. 137,137
• Citation: 49 L.Ed. 587,25 S.Ct. 324,196 U.S. 529
• Parties: CITY OF OKLAHOMA CITY, Plff. in Err. , v. FRANK McMASTER
• Court: U.S. Supreme Court

196 U.S. 529

25 S.Ct. 324

49 L.Ed. 587

CITY OF OKLAHOMA CITY, Plff. in Err.,

v FRANK McMASTER.

No. 137.

Argued January 18, 19, 1905.

Decided February 20, 1905.

Messrs.

Frank Dale, S. A. McGinnis, C. Porter Johnson, and A. G. C. Bierer for plaintiff in error.

Messrs.

Chester Howe Mr. Justice Peckham delivered the opinion of the court:

On the 22d day of September, 1899, this action of ejectment was commenced by defendant in error in the district court of the third judicial district of Oklahoma territory, in Oklahoma county. It was brought to recover lands situated in a public street in the city of Oklahoma City. Judgment was entered for the defendant in error for the recovery of the land, and that judgment was affirmed by the supreme court of the territory, and the plaintiff in error has brought the case here, both by writ of error and appeal, taking both courses as a precaution, in order to bring the case before us. It was tried by the court, a jury having been waived by the parties, and the defendant in error contends that where a case is thus tried in a territorial court, an appeal to this court is the only proper proceeding to obtain a review. Act of Congress, 1874, 18 Stat. at L. 27, 28, chap. 80. The contention of defendant is not correct in this case. The manner of reviewing judgments, in civil cases, of the supreme court of the territory of Oklahoma, is specially provided for by the 9th section of the act of May 2, 1890 (26 Stat. at L. 81, 85, chap. 182), providing a territorial government for Oklahoma, and is not governed by the act of Congress of 1874. Comstock v. Eagleton, 196 U. S. 99, 25 Sup. Ct. Rep. 210, 49 L. ed. 402. The 9th section of the act of 1890 provides that writs of error and appeal from the final decision of the supreme court of the territory will be allowed and may be taken to the Supreme Court of the United States 'in the same manner, and under the same regulations, as from the circuit courts of the United States,' and it was held in the above case that final judgment in an action at law in the circuit court of the United States can only be reviewed by writ of error. The assumption that because this case was tried before the court, a jury having been waived by consent, that therefore it ought to go up by appeal, is a mistaken one. In Deland v. Platte County, 155 U. S. 221, 39 L. ed. 128, 15 Sup. Ct. Rep. 82, the case was an action at law where a jury had been waived and trial had before the court. Nevertheless, it was held that, as it was an action at law, and the case came from a circuit court of the United States, it could only be reviewed by this court on writ of error. This case must, therefore, be reviewed by writ of error because it is an action at law, although tried by the court upon a waiver of a jury. The record shows a sufficient bill of exceptions, however, and the case is to be reviewed upon the record as thus presented.

Upon the trial, for the purpose of proving the issue upon his part, by means of evidence of a former adjudication, the plaintiff introduced in evidence what he contended was a judgment in his favor for the recovery of the same land in an action in which he was plaintiff and Edgar N. Sweet et al., town-site trustees, defendants, and which was entered in the district court of the second judicial district, county of Canadian, territory of Oklahoma, on or before May 11, 1892, and recorded on the 14th day of May, 1892, in the county of Oklahoma. The plaintiff argued that the defendant (plaintiff in error) in the case at bar was bound as a privy by the adjudication in the former action. The paper was received in evidence by the court, and it is set forth at length in the record. It is evidently nothing but a finding of facts by the judge trying the cause. There was also a paper offered and received in evidence, signed by the trial judge in the same case, and dated the 13th day of October, 1893. This was an order made in the case by him at Kingfisher, in Kingfisher county, and was entered in that county on the 13th day of October, 1893,—the day of its date. The order directs the defendant to make, execute, and deliver to Frank McMaster, the plaintiff, a trustee's deed, 'as decreed by this court on the 14th day of November, 1892, of the following described premises and real estate.' It is attempted to piece these two documents together, the finding of facts filed in Canadian county and thereafter recorded in the county of Oklahoma, and the order made in Kingfisher county, and filed therein October 13, 1893, and to regard the whole as a judgment. It is plain that there has been no formal judgment entered in the case, and that these two separate documents, filed in different clerks' offices, cannot be pieced together and made a formal and complete judgment. Without a judgment the plea of res judicata has no foundation; and neither the verdict of a jury nor the findings of a court, even though in a prior action, upon the precise point involved in subsequent action and between the same parties, constitute a bar. In other words, the thing adjudged must be by a judgment. A verdict or finding of the court alone is not sufficient. The reason stated is that the judgment is the bar, and not the preliminary determination of the court or jury. It may be that the verdict was set aside, or the finding of facts amended, reconsidered, or themselves set aside, or a new trial granted. The judgment alone is the foundation for the bar. Springer v. Bien, 128 N. Y. 99, 27 N. E. 1076.

Without resort to this (asserted) judgment in the action against the town-site trustees, it is not urged that the defendant in error made out his case upon the trial. There was no judgment, and the 'finding of facts' should not have been held to be such. For the error in the admission of the socalled judgment the case must be reversed.

We do not decide, even if there had been a technical and formal judgment entered, that such a judgment would be conclusive in favor of the plaintiff upon the trial of this action against the city of Oklahoma City. Whether the plaintiff in error would be regarded as a privy to such judgment, and therefore bound by it, it is not now necessary to decide.

The court is, however, indisposed to let the case rest upon the error pointed out. The question will arise upon another trial, as to the right of the plaintiff to recover upon the facts stated in the finding of facts in the action against the town-site trustees. We think it proper to now look into those findings simply for the purpose of determining whether, assuming them to be facts, the plaintiff below made out a case which would entitle him to recover the land in suit. The supreme court of the territory is of opinion that he did. Among the facts found on the trial of the case against the trustees are the following:

The trustees, appointed under the act of 1890, May 14 (26 Stat. at L. 109, chap. 207, U. S. Comp. Stat. 1901, p. 1463), entered the land in the local land office at Oklahoma City, September 3, 1890, covering, among other lots, the premises in question, 'in trust, for the use and benefit of the occupants thereof.' A patent from the United States was, on the 1st of October, 1890, issued to the trustees for the land (covering over 160 acres), which patent was, by its terms, in trust for the occupants of the town site, according to their respective interests. At neither date was the plaintiff below an occupant of the land in suit.

Prior to this time, and on the 22d day of April, 1889, the land had been opened for settlement under the proclamation of the President, pursuant to the act of Congress approved March 2, 1889. 25 Stat. at L. 980, chap. 412, page 1005, § 13. The land in question, together with other lots, was settled upon and occupied as a town site shortly after noon of April 22, 1889, and has continued to be and is still so held and occupied.

A portion of the occupants of the tract, on the 22d day of April, 1889, tacitly agreed to a plat of the land into lots, blocks, streets, and alleys, and the plaintiff on that day legally entered upon and occupied the piece or parcel of land particularly described in the plat as his lots, and...