Clark v. Blair

• Decision Date: 01 January 1883
• Citation: 14 F. 812
• Parties: CLARK v. BLAIR.
• Court: U.S. District Court — District of Nebraska

14 F. 812

CLARK v. BLAIR.

United States Circuit Court, D. Nebraska.

January, 1883

This is a bill in equity to set aside and cancel certain tax deeds executed by the county of Cuming, through its treasurer, to the respondent. At the hearing upon the final proofs the court held that the tax sale and deed complained of were void, and that the plaintiff was entitled to the relief sought, but not until he should pay or tender to respondent such legal taxes as the latter has paid upon the land in controversy. The case was accordingly referred to the master to ascertain and report the amount of the legal taxes so paid by the respondent. It was insisted on the former hearing that a decree of the district court of the state of Nebraska, in the case of the Nebraska Land & Imp. Co. v. John J. Blair and John Kloke, County Treasurer, which decree was pleaded in bar and offered in evidence, was, in law and in equity, an adjudication of the issues between the parties in the present suit. This defense was overruled at the former hearing, and has been renewed and elaborately reargued. Besides this defense, certain questions arising upon the report of the master, and fully stated in the opinion, are now to be considered.

E Estabrook, for complainant.

J. C Crawford and J. M. Woodworth, for respondent.

McCRARY C.J.

Although the defense of the former adjudication was raised considered, and passed upon at the hearing upon the proofs yet the same question may be again considered upon exceptions to the master's report. It is competent for the court, at any time before the final decree has been signed, to reconsider and modify or set aside any of the interlocutory rulings or orders made in the course of the proceeding. The final hearing in such a case as this is when exceptions to the master's report are considered and passed upon, and if the court is then of opinion that in any of its previous orders it has committed errors, the same may be corrected. Fourniquet v. Perkins, 16 How. 82.

I have accordingly reconsidered, in the light of the thorough reargument of counsel, the question whether the former decree relied upon by respondent is a bar to the present suit.

Although the parties are not identical, I assume that in legal contemplation the parties to the present suit are bound by the former adjudication to the same extent as if they had all been parties to that proceeding. The former suit, however, was brought to obtain a different remedy and secure a different relief from that which is sought in the present case, although the relief sought in the two cases was predicated upon the same facts. The former suit was brought before the tax deed was executed, and for the purpose of enjoining its execution, while the purpose of having the same set aside as fraudulent and void. For the purposes of this question, we may say that the present is a suit based upon the same facts, or between the same parties or their privies, but to enforce a different demand and obtain another form of relief. It is, therefore, not a case in which the parties are conclusively bound by all that might have been litigated in the former suit. They are conclusively bound only by what was in fact litigated and decided. Cromwell v. County of Sac, 94 U.S. 351.

The record of the former suit shows that the bill was dismissed. It shows nothing more, but the court will undoubtedly presume that it was dismissed, because the court held upon some ground that the complainant had failed to make out a case for relief. In such a case it is not doubt competent to prove, by evidence aliunde the record, what questions were in fact contested and decided, if under the pleadings numerous questions might have been litigated, and the case might have turned upon any one of several questions. We are, however, in the present case left to the consideration of the pleadings and decree of dismissal alone. From these we are asked by the respondent to assume that the state court decided the taxes in question to be legal, notwithstanding the matters alleged in the bill, and that the sale for said taxes was valid, so that the purchaser would acquire a good title. All this we must assume in order to hold that the former adjudication is a bar to relief here. We should be very reluctant to assume this, since to do so would be to declare that the state court in the former suit held that a tax sale may be valid notwithstanding the grave irregularities, not to say frauds, alleged in the bill and shown by the proofs in this case. As we have said, where the record is silent, evidence is admissible to show what was actually litigated...