Harvison v. Turner

• Citation: 116 Miss. 550,77 So. 528
• Decision Date: 28 January 1918
• Docket Number: 19914
• Court: United States State Supreme Court of Mississippi
• Parties: HARVISON v. TURNER

77 So. 528

116 Miss. 550

HARVISON v. TURNER

No. 19914

Supreme Court of Mississippi

January 28, 1918

Division A

APPEAL from the chancery court of Perry county, HON. W. M. DENNY JR., Chancellor.

Bill in equity by L. E. Turner against W. D. Harvison. From a decree overruling a demurrer to the bill, defendants appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Q. S Heidelberg and Hannah & Foote, for appellant.

We, respectfully, submit that the questions involved in this record are the same identical questions that were involved in the case of Harvison v. Turner in the chancery court of Perry county and that the adjudication of said case precludes the right of appellee here.

The doctrine of res judicata as laid down in 23 Cyc., 1215, is: "A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judgment there in so far as concerns the parties to that action and persons in privity with them, and cannot be again litigated in any future action between such parties and privies, in the same court or in any other court of concurrent jurisdiction upon the same or a different cause of action. "

A reference to the pleadings in the cause of Harvison v. Turner, and the pleadings in the case at bar shows that the only difference in parties in these cases is that the wife of Harvison is a party to the former proceedings. The pleadings reflect that she has no interest in the controversy and that within the meaning of the rules laid down as to former adjudication, the parties in these two proceedings are identical.

An analysis of the pleadings in these two cases reflects that the facts and cause of action therein stated are practically the same and identical and we submit that because the relief asked in one is different from relief asked in the other does not relieve the appellee from the burden of the former adjudication. 32 Cyc., pages 1168-9.

The above rule is supported in Mississippi by the case of Burkett v. Burkett, 81 Miss. 83, 33 So. 417.

Even if it be admitted that this identical point was not directly passed upon, or adjudicated, we still submit that appellee is bound by the judgment in said case. 23 Cyc., 1170.

The above doctrine is supported in Mississippi by the case of Hubbard v. Flynt, 58 Miss. 266, in which case it is said, page 270: "There is no distinction between this and the matter involved, in the record of the former case, and which being so involved, might have been litigated and decided, and which is held to be a matter adjudicated because it might have been." The above doctrine is supported by Stewart v. Stebbens, 30 Miss. 66.

The law as laid down in Hubbard v. Flynt, is cited with approval in the case of Hardy v. O'Pry, 102 Miss. 197, 79 So. 73. But even conceding that the issues are not the same, and conceding that the relief asked in the two is not the same, yet we submit that the appellee is bound just the same. 23 Cyc., 1169.

In the consequence we submit that the trial court erred in overruling the demurrer; that the same should have been sustained and the bill of complaint dismissed.

Stevens & Cook, for appellee.

The controversy in the first suit, was over the note and the question of its payment or non-payment, and the court was necessarily confined to the determination of that particular controversy, and the decree rendered adjudicates that the note was paid, as contended by Harvison, and that the lien securing it upon the records therefore ought to be cancelled and Turner denied a decree for any balance on the note itself. Turner was suing in his cross-bill, as above indicated, for an alleged balance due on a promissory note. Now in the case before the court, the present suit, he is suing for timber which he alleges Harvison cut and sold through the Jeff Griffis Mercantile Company after he had sold the selfsame timber standing on the land to Turner in settlement of the said note. The cause of action in the former suit and in the latter suit are entirely different. The case of Hardy v. O'Pry, 102 Miss. 197, cited by counsel for appellant is absolutely conclusive against appellant in this suit.

The court in the case just cited, says: "It is true those things which might have been litigated, as well as those things actually litigated in the first suit are res judicata; but this means those things "involved in the record of the former case, and which, being so involved, might have been litigated and decided," etc. Hubbard v. Flint, 58 Miss. 266. And, moreover, when the cause of action in the two suits is different only those things are concluded by the first judgment which were actually in issue in the suit in which it was rendered. Scully v. Lowenstein, 56 Miss. 652; 23 Cyc., 1297; 24 Am. & Eng. Ency. Law (2 Ed.), 782."

There is no merit in the contention of counsel for appellant that: "If it is to be considered independent of said transaction the proper forum for appellee here was to the circuit court on a charge of trespass and we submit that he has neither right nor remedy in this court."

It will be borne in mind by the court in considering this contention of counsel, that the bill of complaint not only seeks a decree against Harvison for the appropriation of Turner's timber but seeks to have Turner subrogated to the lien of the Jeff Griffis Mercantile Company under its trust deed, which deed of trust was satisfied as to the Jeff Griffis Mercantile Company only by the appropriation thereto of the proceeds of Turner's timber. The remedy of subrogation and the prayer therefor gives the chancery court jurisdiction, and especially so since the bill of complaint further shows that Harvison is insolvent and that Turner is without remedy unless he is subrogated to the Jeff Griffis Mercantile Company's deed of trust on the Perry county land. Counsel for appellant make no contention that we do not make out a proper case for subrogation if we have a claim against Harvison which was not adjudicated in the former suit. They rely upon the defense of res adjudicata only.

We submit that the learned chancellor below was correct in his decree overruling the demurrer in this case and that the decree should be affirmed.

OPINION

SYKES, J.

The appellee here, L. E. Turner, complainant in the lower court filed an original bill in the chancery court of Perry county against W. D. Harvison. The bill, in substance, alleges that Turner sold to Harvison some land in Green county for the sum of three thousand dollars; that to secure the payment of the purchase price, appellant Harvison gave his note for the purchase price, three thousand dollars, payable three years after date. A vendor's lien was reserved in the deed to the land in Green county. Harvison and wife, also to secure the payment of the note, executed and gave a deed of trust on some timber on lands owned by them in Perry county. Subsequent to the execution of the deed of trust on the standing timber on the lands in Perry county, Harvison gave a deed of trust upon the land and the timber in Perry county to the Jeff Griffis Mercantile Company, to secure an indebtedness of five hundred dollars. The bill further alleges: That after the execution of this second deed of trust the mercantile company, acting for Harvison, induced the appellee, Turner, to release and cancel his lien upon the timber in Perry county upon the payment to Turner of two hundred dollars by the mercantile company. This payment was made, and a credit for this amount was given on the three thousand dollar note of appellant. That after the appellant, Harvison, had procured through the mercantile company a cancellation of appellee's deed of trust, he entered upon the lands in Perry county and cut all the remaining merchantable timber and sold it through the mercantile company for the sum of seven hundred and fifty dollars, and applied this sum to the payment of the mercantile company's deed of trust. The bill further alleges that the timber in Green county was sold by Harrison to the Richton Lumber Company for the sum of one thousand dollars, and this one thousand dollars was paid to appellee, Turner, and credited by him on the note for three thousand dollars, the two sums for which the timber had been sold on the lands in Green and Perry counties making a total of one thousand two hundred dollars paid on the note through the sales of timber, and leaving a balance due appellee Turner of one-thousand, two hundred and ninety-four dollars and ninety-two cents. The bill then sets up the history of a previous litigation between these same parties in Perry county. In that bill the appellant, Harvison, was the complainant, and appellee, Turner, defendant. The original bill, answer, and cross-bill, answer to cross-bill, and...