Gilbert v. Bowling Green Bank & Trust Co.
| Decision Date | 20 November 1970 |
| Citation | 460 S.W.2d 14 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | R. C. GILBERT, Appellant, v. BOWLING GREEN BANK & TRUST COMPANY, Executor of the Will of Sarah Garris, Deceased, Appellee. |
G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, for appellant.
John David Cole, Harlin, Parker, Ricketts, Lucas & English, Bowling Green, for appellee.
CULLEN, Commissioner.
R. C. Gilbert filed a claim against the estate of Sarah Garris, deceased, in the amount of $15,000, as compensation for services alleged to have been rendered by Gilbert to Mrs. Garris at her instance and request and upon her promise that she would pay a reasonable amount for the services. The claim was rejected by the executor, whereupon Gilbert brought the instant action against the executor to recover on the claim. The circuit court sustained a defensive plea of res judicata and entered judgment dismissing the action. Gilbert has appealed from that judgment.
The defense of res judicata was based on the judgment in a previous action which Gilbert had brought against First Federal Savings and Loan Association of Bowling Green, and in which the executor was joined as an additional defendant. In that action Gilbert had sought to be adjudged the owner of a savings account in the amount of $12,281.59, in the savings and loan association. His claim was that Mrs. Garris, before her death, had directed the association to transfer her individual account to one in her name 'and/or' Gilbert's name, thus creating a joint account with right of survivorship, of which Gilbert became the owner upon the death of Mrs. Garris. The circuit court in that action found Gilbert's proof inadequate to establish his claim, and entered judgment dismissing the action.
The theory on which the previous judgment was held to be res judicata of the instant action was that Gilbert could have asserted the instant claim in the previous action and therefore he is precluded from asserting it in the subsequent action. The theory rests upon a misconception of the doctrine of res judicata. The proposition that a litigant is precluded as to matters which he could have asserted (as well as to matters that actually were asserted) applies only to such matters as 'properly were involved in the scope of the proceedings or belonged to the subject of the litigation,' Smith v. Decker, Ky., 374 S.W.2d 487, or the application of which would be to 'sustain or defeat the right asserted in the earlier proceeding,' All States...
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