Flanagan v. Benson

• Decision Date: 31 December 1929
• Docket Number: No. 8694.,8694.
• Citation: Flanagan v. Benson, 37 F.2d 69 (8th Cir. 1929)
• Parties: FLANAGAN v. BENSON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

37 F.2d 69 (1929)

FLANAGAN v.BENSON et al.

No. 8694.

Circuit Court of Appeals, Eighth Circuit.

December 31, 1929.

T. Austin Gavin, of Tulsa, Okl. (Horace H. Hagan, of Tulsa, Okl., on the brief), for appellant.

Before VAN VALKENBURGH and GARDNER, Circuit Judges, and MUNGER, District Judge.

MUNGER, District Judge.

This action was brought by W. D. Benson claiming to be the assignee of certain promissory notes, against the makers W. E. Campbell and Jack Haight, to recover the amount of the notes.

J. P. Flanagan, the appellant, was allowed to intervene, and filed a petition in intervention under a statute of Arkansas allowing interventions in actions at law (seeGunnells v. Latta, 86 Ark. 304, 111 S. W. 273;Choctaw O. & G. R. Co. v. McConnell, 74 Ark. 54, 84 S. W. 1043), and in his intervening petition he alleged the recovery of a judgment for about $41,000 in the district court of Tulsa county, Okl., against F. E. Clark, the husband of Iva B. Clark, Mrs. Clark being the payee of the notes sued upon in this action.

It was further alleged in the intervening petition that in a subsequent suit in the state court a decree had been obtained by the intervener enjoining Iva B. Clark from disposing of the notes, but that thereafter W. D. Benson notified the makers of the notes of his possession and claim of ownership of the notes.Intervener alleged that W. D. Benson was made a party to the suit by appellant against Iva B. Clark; that service by publication was had upon him; that a copy of the proceedings in that suit was sent to him at his place of residence; that a registered receipt was received from him by appellant's attorneys, and that he had actual notice of the pendency of the proceedings, but that he failed to intervene in the suit; and it is alleged that all of said proceedings are res judicata as to W. D. Benson.

It is further alleged that he either knew or should have known at the time of the transfer of the notes that Iva B. Clark had no right thereto and was under an injunction against the sale or disposition of the notes.The intervener prayed that he be decreed to be entitled to the proceeds of the notes, and that W. D. Benson be enjoined from setting up any claim adverse to the right, title, and interest of appellant.The plaintiff below, W. D. Benson, answered to the intervening petition.In substance, it was a denial of all its allegations.

The journal entries in this case show that all the parties filed a stipulation waiving a jury and agreeing to try the case to the court, and that the intervener, to sustain his plea of res judicata, offered in evidence the pleadings, proceedings, orders, and judgments in the district court of Tulsa county, Okl., and the question of res judicata, by agreement of all the parties, was submitted to the court upon the pleadings, the original notes sued upon, and upon the certified copies of papers and records offered by the intervener.Subsequently, the court made an order overruling the plea of res judicata.At a later date, the court entered a judgment reciting therein that the plaintiff and defendants had stipulated that a judgment should be rendered against the defendants and in favor of the plaintiff for $3,000, and a judgment was entered accordingly.The judgment entry further recited that the intervener had filed a demurrer to the evidence and a motion for a judgment against the plaintiff, that the demurrer and motion was overruled, and the court found that the intervener had no legal right or interest in the subject-matter of the suit, and the intervention was dismissed.

The appellant relies upon two assignments of error: (1) That the court erred in entering judgment in favor of the plaintiff and against the intervener; (2) that the court erred in failing to sustain the intervener's plea of res judicata, in that the court failed to hold that intervener's judgment in the district court of Tulsa county, Okl., against W. D. Benson, adjudicated the issues involved in the pending case as between W. D. Benson and the intervener.

The first assignment of error is too indefinite and general to present any question for decision.Vandeventer et al. v. Traders' National Bank (C. C. A.)241 F. 584, 587;Stoffregen v. Moore (C. C. A.)271 F. 680, 681;Arkansas Anthracite Coal & Land Co. v. Stokes (C. C. A.)277 F. 625, 627.There was no error in overruling the so-called plea of a former judgment against W. D. Benson and in favor of the intervener, as alleged in the intervening petition, so far as the pleadings in this case are concerned, because the allegations of the intervening petition as to the existence of that judgment, and of Benson's notice of that suit were denied by the plaintiff's answer.

There is no bill of exceptions in this case.Appellant, in his precipe to the clerk of the trial court for a transcript of the record on this appeal, asked him to include the certified copies of the record in the case of J. P. Flanagan v. F. E. Clark et al., case No. 40694 in the district court for Tulsa county, Okl., and the clerk certifies that he found nothing in this case making a part of the record any certified copies of the record of the district court of Tulsa county, Okl., as called for by the precipe, but that he had found in the case file, in an envelope marked "trial exhibits," what purported to be certified copies of such proceedings, and at the...