Coon v. O'Brien

• Decision Date: 13 January 1922
• Docket Number: 21853
• Citation: 186 N.W. 340,107 Neb. 427
• Parties: MINNIE L. COON ET AL., APPELLANTS, v. ROBERT D. O'BRIEN ET AL., APPELLEES
• Court: Nebraska Supreme Court

186 N.W. 340

107 Neb. 427

MINNIE L. COON ET AL., APPELLANTS, v. ROBERT D. O'BRIEN ET AL., APPELLEES

No. 21853

Supreme Court of Nebraska

January 13, 1922

APPEAL from the district court for Cheyenne county: HANSON M GRIMES, JUDGE. Reversed, with directions.

REVERSED.

C. E Tefft, C. A. Robbins and Radcliffe & Hyde, for appellants.

D. O Dwyer, Peterson & Devoe and Halligan, Beatty & Halligan, contra.

Heard before LETTON, DEAN and ALDRICH, JJ., CLEMENTS (E. P.) and DILWORTH, District Judges.

OPINION

DILWORTH, District Judge.

Appellants, Minnie L. Coon and Omar A. Coon, wife and husband, commenced this action in Cheyenne county against Robert D. O'Brien, Dennis O. Dwyer, Joseph M. Swensen, Christian E. Metzger, and Etta Belle Metzger, to quiet title to certain land situated in that county. Afterwards, by stipulation of parties and order of the court, H. F. Brinkman and C. W. Bish were also made defendants. The proceedings in this court being a trial de novo of the cause, we deem it proper to set out somewhat in detail the facts as developed on the trial in district court.

The undisputed evidence, and the stipulation of the parties, show that on the 26th day of April, 1916, Robert D. O'Brien obtained a judgment in the district court for Cass county, Nebraska, against Omar A. Coon for the sum of $ 3,978, together with costs amounting to $ 148.75; that an appeal was taken from such judgment to the supreme court, and that no supersedeas bond was given. A transcript of said judgment was filed in the office of the clerk of the district court for Cheyenne county on May 1, 1916. On May 3, 1916, a quitclaim deed was filed in the office of the register of deeds of said county, whereby Omar A. Coon conveyed the lands involved herein to his wife, Minnie L. Coon. On July 16, 1916, an execution on this judgment issued out of the office of the clerk of the district court for Cass county, directed to the sheriff of Cheyenne county, who levied the same on and sold the lands in question to the judgment creditor, Robert D. O'Brien, for $ 4,000, being the appraised value thereof, and approximately the amount of the judgment. The sale was confirmed by the district court for Cass county, and the sheriff deeded said lands to O'Brien on September 12, 1916. By deed, dated October 14, 1916, O'Brien conveyed the land to H. F. Brinkman, who was the young lady stenographer in the office of Dennis O. Dwyer, the attorney for O'Brien in all the proceedings had to obtain and force said judgment. This deed expressed no consideration, and covenanted only to warrant and defend the premises against any acts of the grantor. It was filed for record March 21, 1917. On April 7, 1917, O'Brien made a correctional deed to said Brinkman, in which the consideration was stated as $ 4,000. This deed was filed for record on March 18, 1918. On the same day that the first deed to Brinkman was dated, October 14, 1916, she entered into a contract with appellee Joseph M. Swenson to sell him said lands for the sum of $ 4,450, to be paid as follows: $ 950 cash, which was paid, and $ 3,500 on March 1, 1917.

O'Brien instituted an action in the district court for Cheyenne county against Minnie L. Coon sometime in December, 1916, to set aside and cancel the deed of her husband to her on account of fraud as to his creditors, and quieting title to the lands in O'Brien as to any claim of right, title or interest therein of said Minnie L. Coon. On March 21, 1917, a decree as prayed for was entered in such action. From this decree Minnie L. Coon appealed to this court, and gave a supersedeas bond fixed by the court at $ 750. On May 31, 1917, H. F. Brinkman executed a deed, blank as to grantee, for said lands, and gave the same to defendant Dwyer. On February 16, 1918, the supreme court reversed and vacated the judgment rendered in the district court for Cass county in favor of O'Brien and against Omar A. Coon. On March 18, 1918, the deed in blank executed by Brinkman on May 31, 1917, with the name of C. E. Metzger inserted as grantee, was filed for record in Cheyenne county. At the January term, 1919, of the supreme court, Minnie L. Coon moved to have her appeal in the case of O'Brien against her dismissed without prejudice to her rights in the district court. This court at that term granted said motion and dismissed said appeal without prejudice to her rights in the lower court. Thereafter, on July 9, 1919, this action was commenced. Swenson filed an answer and cross-petition, setting up his contract of purchase, claiming to be a bona fide purchaser, and asking that such contract be carried out and title to the land be quieted in him. Metzger filed an answer and cross-petition, claiming to be a bona fide purchaser by virtue of the deed of Brinkman to him, and prayed that title to the premises be quieted in him as against the plaintiffs and his codefendants. Dwyer filed a disclaimer; O'Brien made default of any answer; Bish filed an answer only to the cross-petition of Swenson, denying generally such answer and cross-petition. No process was served on Brinkman. Trial was had and a decree rendered in favor of the defendant Swenson, providing that he pay into the district court, "within five days from the date of this decree, the sum of $ 3,500, provided to be paid in his contract with the defendant Brinkman, for the use and benefit of the said Brinkman, or her assigns, the said Brinkman shall execute and deliver, within ten days from the date of this decree, a good and sufficient deed conveying to said defendant Swenson the lands involved herein and that the deed from said H. F. Brinkman to defendant O'Brien (evidently a mistake in name made by transcriber, as Metzger was undoubtedly meant), and the deed from said O'Brien to defendant Bish, and the mortgage given thereon by the defendant Bish, be and the same hereby are canceled and held to be null and void."

The plaintiffs and the defendants O'Brien, Bish, Brinkman, and Metzger, jointly and severally except. Plaintiffs perfect appeal to this court. The plaintiffs, and defendant Swenson only of all the defendants, appeared or participated in the hearing of this cause in this court in any manner.

This action is brought under section 8087, Rev. St. 1913, which reads: "If any judgment or judgments, in satisfaction of which any lands or tenements are sold, shall at any time thereafter be reversed, such reversal shall not defeat or affect the title of the purchaser or purchasers; but, in such case, restitution shall be made by the judgment creditor, of the moneys for which such lands or tenements were sold, with lawful interest from the day of sale."

It is insisted by appellee Swenson that no one but the defendant in the action in which the judgment was rendered can take advantage of a reversal of a judgment where no supersedeas bond has been filed. This court in the case of Hier v. Anheuser-Busch Brewing Assn., 60 Neb. 320, 83 N.W. 77, recognized the contrary rule and sustained an action brought by the assignee of a judgment debtor for restitution, or recovery of money from the judgment creditor realized on a judgment in which no supersedeas bond was given, and was afterwards reversed.

It is also urged that the plaintiffs cannot maintain this action, either individually or jointly; that Omar A. Coon has no interest in the land; that the deed made by him to his wife disposed of all his interest therein, and is effective notwithstanding the decree in the case of O'Brien v. Minnie L. Coon. There is merit in this proposition. The deed from Coon to his wife, Minnie L., is good between themselves, and as to all parties except the creditors of Omar A. Coon. Lewis v. Holdrege, 56 Neb. 379, 76 N.W. 890.

While Omar A. Coon did not have sufficient interest in the land to permit him to maintain this action individually, yet he was a proper party to join with his wife. Holladay v. Rich, 93 Neb. 491, 140 N.W. 794.

It is insisted, however, that the wife, Minnie L. Coon, cannot maintain this action for the reason that she is barred by the decree in the case of O'Brien v. Coon. Such is not the fact. The issues in that case were not the same as in this. The issue in the O'Brien v. Coon case was as to her interest in the land as a purchaser thereof, as against the demands of her husband's creditors. The present action is to determine her right in the land as the assignee of her husband's right to demand restitution of his lands sold under a judgment, not superseded, that was, after the sale had been made, reversed and declared void. The doctrine of res judicata does not apply in this instance. The issues are not the same. This court has declared in what instance the rule of res judicata does apply, and that is:

"A judgment of a court of competent jurisdiction upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties; but, to this operation of the judgment, it must appear either upon the face of the record or be shown by extrinsic evidence that the precise question was raised and determined in a former suit." Morgan v. Mitchell, 52 Neb. 667, 72 N.W. 1055.

Not only were the issues not the same, but the necessary parti...