Liddell v. Smith

• Decision Date: 24 May 1965
• Docket Number: No. 14778.,14778.
• Citation: 345 F.2d 491
• Parties: Harold LIDDELL, Plaintiff-Appellant, v. Noel SMITH, William Theofanopoulos, Sofia Theofanopoulos, and Noel Smith Development Company, Ltd., (formerly known as Midwest Construction Co., Ltd.), Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

345 F.2d 491 (1965)

Harold LIDDELL, Plaintiff-Appellant, v. Noel SMITH, William Theofanopoulos, Sofia Theofanopoulos, and Noel Smith Development Company, Ltd., (formerly known as Midwest Construction Co., Ltd.), Defendants-Appellees.

No. 14778.

United States Court of Appeals Seventh Circuit.

April 22, 1965.

Rehearing Denied May 24, 1965.

Ronald W. Polston, Craig & Craig, Mt. Vernon, Ill., for plaintiff-appellant.

Stewart A. Pearce, Carmi, Ill., Gerald C. Quindry, Richard C. Cochran, Fairfield, Ill., John P. Wham, Centralia, Ill., Kern & Pearce, Carmi, Ill., Wham & Wham, Centralia, Ill., for appellees.

Marshall, Feiger, Robison & Quindry, Loy & Cochran, Fairfield, Ill., for appellees Theofanopoulos.

Before SCHNACKENBERG and KILEY, Circuit Judges, and GRANT, District Judge.

GRANT, District Judge.

Plaintiff Liddell, defendant Noel Smith, and one James Castle (not a party hereto) entered into oral agreement to combine their talents and money for the purpose of buying and clearing timber land in Wayne County, Illinois. As a part of that program they incorporated Sherwood Land Company to hold title to any such lands. Defendant Noel Smith was the sole owner of defendant Noel Smith Development Company, Ltd., (formerly known as Midwest Construction Co., Ltd.). Plaintiff had hired defendants Theofanopoulos to assist in the clearance of certain of this land. Following considerable earlier litigation which involved, in turn, all of the parties hereto, this action was brought in the District Court to recover money damages, charging a malicious conspiracy to defraud the plaintiff.

Defendants' Motions to Dismiss or for Summary Judgment, raised the defense of res judicata, on the theory that the facts alleged in this case were alleged and decided in the prior actions (except the allegations of perjury noted below). In entering judgment for the defendants, the able District Judge found that "everything arising out of the * * * transactions was litigated, or could have been properly presented, in the cases decided in the Circuit Court of Wayne County, Illinois." We agree and we affirm.

The District Court's careful summary of the allegations in the complaint and amended complaint consumed 11 pages of the Appendix to Appellant's brief. No useful purpose would be served by encumbering this record with a detailed recital of that long history of litigation which included six prior lawsuits brought by various of these parties — five actions in the Circuit Court of Wayne County, Illinois, and one prior action in the United States District Court for the Eastern District of Illinois.

In affirming we quote with approval the following from the opinion of the District Court:

"It was necessary to go into great detail in listing the allegations of the complaint and of the amended complaint because of the nature of the answer timely filed by the defendants in this cause. There is a special defense raised in the answer filed by all the defendants which goes to the very heart of the question of whether this court should grant the defendants\' motion to dismiss or their motion for summary judgment. This special defense, in the words of the answer is:

"`All of the issues which are alleged as a basis for the injunctive relief prayed, with the exception of the allegations pertaining to the levy and advertisement for sale, are matters already within the jurisdiction of the Circuit Court of Wayne County, Illinois, in complaints filed in said Court by the plaintiff in this case, many of which issues have already been decided by the Circuit Court of Wayne County, Illinois, and are, therefore, necessarily outside the jurisdiction of this honorable Court.\'

"It is obvious * * * that Harold Liddell chose the Circuit Court of Wayne County as his forum when he filed two cases there and failed to attempt to remove the case in which he was the defendant to the United States District Court for the Eastern District of Illinois.

"This Court is of the opinion that the motions of the defendants must be allowed on the theory of res judicata. Res judicata is a rule of universal law pervading every well regulated system of jurisprudence, and is put on two grounds embodied in various maxims of the common law; the one, public policy and necessity which makes it to the interest of the State that there should be an end to the litigation — interest republicae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause — nemo debet bis vexari pro eadem causa. 50 C.J.S. Judgments § 592 (citing numerous cases). There is no doubt in this Court\'s opinion that the defendants in this case would be sorely vexed if they had to again litigate the same factual situation that was before the Circuit Court of Wayne County, Illinois. The essential elements of res judicata have been defined by the courts of Illinois, and by the Federal Courts in this Circuit as identity of parties, of subject matter and of cause of action. De Met\'s Inc. v. Insull,

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