Glen Allen Mining Co. v. Park Galena Mining Co.

Citation77 Utah 362,296 P. 231
Decision Date06 March 1931
Docket Number4920
CourtSupreme Court of Utah
PartiesGLEN ALLEN MINING CO. v. PARK GALENA MINING CO. et al

Appeal from District Court, Fourth District, Wasatch County; Geo. P Parker, Judge.

Action by the Glen Allen Mining Company against the Park Galena Mining Company and others. From the judgment plaintiff appeals.

REVERSED AND REMANDED, with directions.

De Vine, Howell, Stine & Gwilliam and A. W. Agee, all of Ogden for appellant.

M. E Wilson, E. A. Walton, and J. Louis Brown, all of Salt Lake City, for respondents.

BATES, District Judge. CHERRY, C. J., and STRAUP, FOLLAND, and EPHRAIM HANSON, JJ., concur. ELIAS HANSEN, J., being disqualified, did not participate.

OPINION

BATES, District Judge.

The plaintiff and appellant brought this action to recover from the defendants certain mining property; to have the defendant Anderson and the Park Galena Mining Company decreed to hold said property in trust; and for an accounting by the defendant for ores extracted from the mining properties and moneys received therefrom.

One of the defenses pleaded is that the cause of action set out by plaintiff has been adjudicated. Upon this question the defendants' plea is that on or about the day of August, 1926, in a foreclosure action brought by Francisco Rospigliosi against the Glen Allen Mining Company, judgment was rendered against the Glen Allen Mining Company denying its motion and petition to set aside the sheriff's sale of the property referred to in this action to William Anderson; that in said action it was adjudicated and determined that the sales to William Anderson were good and valid; that in said petition to set aside the sheriff's sale, and in the evidence offered in support thereof, all the things alleged in the plaintiff's complaint in this action were put in issue, fully tried, heard, and determined against the Glen Allen Mining Company; that the defendants in this case are in direct privity with Rospigliosi, plaintiff in that action, as his successors in interest, and that said judgment is in full force; that it has not been modified or reversed; and that the time for appeal has passed.

It is the contention of the respondents in this case that the judgment denying the petition to vacate the sheriff's sale is final, and that it is a complete adjudication of all the questions involved in this case, and therefore binding upon the parties. In their brief they state their position upon this question as follows:

"We contend of course that a judgment purporting to be on the merits must be so regarded as against a collateral attack. Especially do we contend that a judgment to be with prejudice ought never to be considered to be without prejudice merely because the court who rendered it may have had an erroneous opinion that it should be so.

"It is not open for the appellant here to say that the judgment we put in evidence is erroneous. 2 Freeman Judgments Section 709."

"When the second action between the same parties is upon a different claim or demand, or cause of action, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated or determined, and not as to other matters which might have been litigated and determined. This rule holds true whether the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive per se. In all cases it should appear that the first judgment determined the actual question at issue between the parties and that the precise question was raised and determined in the former suit." 15 R. C. L. 973.

"A judgment concludes the parties only as to the facts actually decided, or which were necessarily involved in it and without the existence of which such judgment could not have been rendered, and is not conclusive as to matters not litigated or material to recovery in the former suit." 15 R. C. L. 977.

The judgment rendered determined only that the motion of the Glen Allen Mining Company to set aside the sheriff's sale was denied. The question as to whether or not Anderson held title in trust for the Glen Allen Mining Company was not actually decided, and the court did not intend to determine that question. Neither was this question so involved in the judgment actually rendered that the judgment could not have been rendered without its determination. It is difficult to understand from the record made in this case how the question whether or not Anderson held the property in trust for the plaintiff herein could have arisen upon the hearing of the petition to set aside the sale. The foreclosure sale was held on January 6, 1926. Thereafter the petition to set aside the sale was filed, and hearing had thereon, June 29, 1926, within the redemption period and before the sheriff's deed had issued. Under the terms of the contract with Rospigliosi, all Anderson received for his payment was an option to purchase at any time up to and including ten days after the sheriff's deed on foreclosure was available to the successful bidder.

Although Anderson agreed to and did bid at the sheriff's sale the amount due on the Rospigliosi and Helena L. K. Goddard notes, with costs and attorney fees, yet he was not bound to pay the purchase price until the sheriff's deed was available to him. The agreement also provided that, if and when said time arrives, it is evident to said trustees that William Anderson cannot obtain the sheriff's deed, then the $ 10,000 payment shall be returned to Anderson. His entire obligation at the time of the hearing was conditioned upon his getting title. The only condition upon which he was required to or would make payment of the balance of the purchase price was that he received the deed. If the court had attempted in that proceeding to burden the sheriff's deed when issued, with a trust, Rospigliosi would have been prevented from completing his end of the contract; Anderson could have refused to make payment of the remainder $ 24,500; and no doubt would have demanded and received back his initial payment.

When the sheriff's deed was issued, a new condition arose. The cause of action upon which this action is based and evidence material to these issues came into existence after the motion to set aside the foreclosure sale was filed and hearing had thereon.

The respondent relies upon the rule of law that judgments are binding on their parties and on their privies and successors in interest. But the rule cannot reach the facts in this case. The term "privity" is defined as a mutual or successive relationship to the same right or property. As applied to judgments or decrees of courts, the word means one whose interest has been legally represented at the time. The ground on which persons standing in privity to the litigating party are bound by the proceeding to which he is a party is that they are identical with him in interest. See 6 Words and Phrases, First Series, page 5608, and cases there cited.

When the motion to set aside the sale was presented to the court, the defendant Anderson had an option to purchase the mortgaged property. His rights were no greater than Rospigliosi's. If the motion to set aside the sale had been granted, Anderson would have been bound by such an order, because his rights were dependent upon the success of the person from whom he obtained the option during the progress of the litigation.

But a different situation is presented by the facts in this case. Here an attempt is made to bind Anderson upon a question of trust relationship between him and the defendant in the foreclosure proceeding on the theory of privity of interest between him and the plaintiff Rospigliosi. Upon this question there is neither mutual, successive, nor any relationship between Rospigliosi and Anderson. Anderson's relations to the Glen Allen Mining Company were in no way dependent upon, or connected with, Rospigliosi. He had not the slightest interest in the dispute between Anderson and the Glen Allen Mining Company. It was entirely immaterial to him whether Anderson, in purchasing the property, became the owner in his own right, or whether, when the transaction was consummated, it resulted in creating a trust in favor of the Glen Allen Mining Company. He was interested in having the foreclosure proceedings and the sale of the property thereunder completed to the end that, when the sheriff's deed was tendered, it would become the duty of Anderson to exercise his option, and in that only.

No issue was formed between Anderson and the Glen Allen Mining Company when the motion was heard, and Anderson was not served with notice that such question would be litigated. The trial court recognized these conditions when it determined the motion to vacate and set aside the sale, refused to determine the question of trust relationship, and limited his judgment to a denial of the motion to vacate and set aside the sale. Under these conditions, Anderson ought not be bound by any judgment upon that question, and it follows as a matter of course that the Glen Allen Mining Company could not be bound.

Another defense relied upon by the respondent is that of laches. Upon this question they allege that the property involved is undeveloped mining property of a speculative nature and subject to great fluctuation; that the defendants have expended a large amount of money in the acquisition of the property and in the development and operating of the same; that their title is good and unimpeachable; that the plaintiff has been guilty of inequitable conduct toward Anderson and Featherstone and their predecessor Rospigliosi, and has been guilty of great and unreasonable delay in the assertion of its claims and in the prosecution of this suit.

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