Hargis v. Robinson

• Decision Date: 07 January 1905
• Docket Number: 13,874
• Citation: 79 P. 119,70 Kan. 589
• Parties: GLADYS M. HARGIS et al. v. W. C. ROBINSON et al
• Court: Kansas Supreme Court

79 P. 119

70 Kan. 589

GLADYS M. HARGIS et al. v. W. C. ROBINSON et al

No. 13,874

Supreme Court of Kansas

January 7, 1905

Decided January, 1905.

Error from Cowley district court; CARROLL L. SWARTS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EQUITY--Intervention after Reversal--Restitution and Distribution of Fund. After the reversal of a judgment in an equitable proceeding the supreme court ordered the fund which was the subject of the controversy to be returned to the prevailing party. When the order of restitution was sent down the district court permitted a stranger to the suit to intervene and show that the prevailing party had transferred to him a portion of the fund during the progress of the litigation, and thereupon ordered the payment of the same to him. Held, not error.

2. PRACTICE, DISTRICT COURT--Dismissal with Prejudice. An order of the court dismissing a case "with prejudice," made on motion of plaintiff, is a final disposition of the controversy, and unless it be set aside or reversed it will be a bar to a future action.

J. E. Torrance, and S. C. Bloss, for plaintiffs in error.

Hackney & Lafferty, for defendants in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.

This proceeding involves the question whether, after the supreme court has made an order directing the restoration or payment of a fund to one of two litigating parties, a third may intervene and show that the first has transferred his right to a part of the fund, and that the third party is entitled to such part. The question arises on the following facts, which are more fully set forth in Hargis v. Robinson, 63 Kan. 686, 66 P. 988:

Meredith owned a tract of land, and in 1884 gave a mortgage thereon for $ 800. In 1886 a judgment for $ 270 was obtained against the Merediths which became a lien on the land inferior to the mortgage lien. In 1887 Meredith sold the premises to M. L. Robinson and M. L. Read. In 1889 Read and the representatives of Robinson paid off the $ 800 mortgage, which left the judgment standing as a first lien against the land. In 1893 an execution was issued on the judgment which was levied on the land, and it was subsequently sold to Gladys M. Hargis for $ 1200. In 1894, Robinson and Read both having died, their executors commenced a suit in the district court, asking to be subrogated to the rights of the mortgagee under the $ 800 mortgage which had been previously paid, and also to have their title quieted as against the sheriff's deed to Hargis. In 1898 judgment was rendered, restoring the mortgage lien and foreclosing the same, under which the land was sold for $ 1319.57 to a stranger to the record. Hargis brought the case to this court, and in December, 1901, the judgment of the trial court restoring and foreclosing the mortgage was reversed, it being held that the executors of Robinson and Read were not entitled to subrogation as against Hargis. (Hargis v. Robinson, supra.)

Afterward, and on a motion for restitution, it was made to appear that the land which had been the subject of controversy had been sold to a stranger, and this court made an order that the executors of Robinson and Read pay to Hargis $ 1319.57, or restore the land in controversy. When the mandate of the court upon the order of restitution was sent down judgment was entered in favor of Hargis against the executors for the sum mentioned, but it appearing that it was done without notice to the opposing party it was set aside. Subsequently one-half the amount named in the order of restitution, to wit, $ 775.20, was paid to the clerk of the court, and W. C. Robinson, one of the executors, intervened in his individual capacity, alleging that in October, 1895, Gladys M. Hargis and her husband conveyed an undivided half of the land in controversy to A. P. Johnson, who filed the deed for record March 4, 1897; that in February, 1898, Johnson sold the half-interest in the land to Robinson in his individual capacity, and, as the deed then executed was lost, a later deed, executed in January, 1902, was delivered to Robinson, conveying to him the undivided half of the real estate. Robinson, therefore, asked that one-half of the fund be paid to him, instead of to Hargis. Gladys M. Hargis and her husband alleged that they had made a deed to Johnson, but that it was in fact a mortgage to secure the payment of indebtedness to him. They also set up that Robinson was not entitled to intervene at that stage of the proceedings, and, further, that by reason of his representative capacity as trustee of the Robinson estate he was estopped from asserting any title, in his individual capacity, to the land or fund. Robinson replied that the Hargises could not question the character of the conveyance from Johnson to Robinson because in an action brought by them to have the deed declared to be a mortgage it had been finally determined adversely to their contention; that is, the action had been dismissed by the court with prejudice to the bringing of another action. A hearing was had upon these issues and the court determined that W. C. Robinson was entitled to one-half of the fund, and gave judgment accordingly.

This was an equitable proceeding, and the court rightly allowed intervention by W. C. Robinson, who had not been connected with the litigation in his individual capacity. Ordinarily, a stranger to litigation who has an interest in a fund in controversy, or which is in the custody of the court may intervene and assert a title to all, or a portion, of such fund. It is contended that under the order and judgment of this court the district court was without authority to do anything but enforce the payment of the fund to the Hargises, and this regardless of whether they, or others, were then entitled to the fund. Where the direction in a mandate of the reviewing court is specific and final ordinarily the trial court must carry it into effect. However,...