Messinger v. Anderson

• Decision Date: 17 June 1909
• Docket Number: 1,916.
• Parties: MESSINGER v. ANDERSON.
• Court: U.S. Court of Appeals — Sixth Circuit

171 F. 785

MESSINGER v. ANDERSON.

No. 1,916.

United States Court of Appeals, Sixth Circuit.

June 17, 1909

H. E King, Clayton Everett, and O. B. Snider, for plaintiff in error.

R. P Cary and C. H. Trimble, for defendant in error.

Before LURTON and SEVERENS, Circuit Judges, and KNAPPEN, District judge.

LURTON Circuit Judge.

This is the third writ of error in the same case. The action was ejectment to recover real estate. The plaintiff below was Peter Anderson, a grandson of Henry Anderson, and the title turned upon the proper interpretation of the will of Henry Anderson.

Upon the first trial of the case the court below ruled that under that will the plaintiff took no title, and directed a judgment for the defendant. Upon the first writ of error we adjudged that the court below had erroneously construed the will of said Anderson, and that upon a proper interpretation thereof the plaintiff took title to the premises involved. The judgment was accordingly reversed and remanded for a new trial. The opinion of this court was by Severens, Circuit Judge, and is reported in 146 F. 929, 77 C.C.A. 179, 7 L.R.A (N.S.) 1094.

Upon a second trial the court again instructed a verdict for the defendant. This instruction was, however, not based upon the former erroneous interpretation of the will under which plaintiff claimed, but upon the ground that the plaintiff's action was barred by a peculiar statute of limitations operating as a forfeiture of an estate in remainder or reversion, in favor of the person next entitled, for a neglect to pay taxes.

Upon a second writ of error the judgment was reversed, and a new trial awarded. The opinion of this court by Severens, Circuit Judge, fully states the ground upon which the court proceeded. 158 F. 250, 254, 85 C.C.A. 468.

Upon the third trial in the court below, the defendant interposed a plea in bar to this action arising out of three judgments of the Ohio court of common pleas for Lucas county, in each of which there had been a judgment adverse to the identical title here set up under the will of Peter Anderson. In the first of these cases, Peter Anderson was sole plaintiff, and the United Realty Company and Rosewell E. Messinger, defendants; the first mentioned claiming under Messinger. In the other two cases the United States Mortgage & Trust Company was plaintiff, and Rosewell E. Messinger and Peter Anderson, defendants. In each case there was involved the title of Peter Anderson under the will of Henry Anderson, and in each action the Ohio court of common pleas adjudged that he took no interest or title under said will, and in each action the judgment, upon that ground, was adverse to Peter Anderson. The last two suits were started while the present suit was pending. They were petitions to foreclose mortgages made by Messinger upon each of the lots and parts of lots involved in this action, except lot No. 33. The judgments of foreclosure in these cases were appealed from by Anderson, and the appeals were pending in the Supreme Court of Ohio when this cause was heard in the court below. Unless there is something exceptional in the statute of Ohio providing for appeals in equity cases, it is obvious that the judgments and decrees in these cases are lacking in that finality essential to support a plea of res adjudicata. We need not stop to look into this matter, because, for the purposes of this case, it is enough to determine the legal effect of the judgment in Anderson v. United Realty Company and Messinger, 79 Ohio St. 23, 86 N.E. 644, as a bar to this suit. If that was effectual, we must reverse the judgement. If it was not, the foreclosure decrees would not be, for the same reason, without going further. Recurring, then, to the judgment in Anderson v. Messinger, which was relied upon in bar of the suit below:

It has been insisted that that action included some of the lots involved in this case, and that, whatever the effect of the judgment in that case as a bar to other property, it is an absolute bar so far as that action sought to recover the identical property sued for in this. This point has no other footing than the fact that the original petition did include part of lot No. 19, and the whole of lot No. 21, which are included among those sued for in this action. But, in an amended reply to the answer of the defendants, Anderson averred that the lots mentioned had been included by clerical mistake; suit for them having been brought in the case then pending in the Circuit Court of the United States, and concluded by saying 'that he therefore withdrew from this proceeding all questions involved as to the title or ownership of said above-named lots. ' In the face of this amendment of the pleadings, there could have been no recovery of any part of either lot No. 19 or lot No. 21, for this was a distinct disavowal of any suit for them. The two suits therefore were for different parcels of land; the title of the plaintiff in each case being under the same will.

The action now under review was begun December 27, 1904. In June, 1905, there was a directed verdict and judgment for the defendant, from which a writ of error was sued out from this court. Pending that writ the same plaintiff brought another suit in the Lucas court of common pleas. On March 31, 1906, there was a verdict and judgment for the defendants in this second suit. In the meantime the writ of error to this court had been argued and submitted; but the opinion of this court was not filed until June 5, 1906, a period of about two months after the decision by the common pleas court. The result in this court was that the judgment of the Circuit Court was reversed and remanded for a new trial, upon the ground that the plaintiff, Peter Anderson, took an estate in remainder upon the death of his father, James H. Anderson, under the will of his grandfather, Henry Anderson.

In December, 1906, a second trial of the case was accordingly had in the Circuit Court, resulting in a second verdict and judgement for the defendant. Although the action in the state court had been decided adversely to the title of Anderson, it was not pleaded as a bar nor offered in evidence for any purpose upon this second trial in the court below. Upon a second writ of error, the judgment of the Circuit Court was again reversed, and the cause remanded for a third trial. It was upon this third trial that the defendant for the first time sought to interpose this state court judgment as an estoppel to this action.

It has been pressed upon us that that defense was waived by the failure to plead and rely upon it upon the second trial of this case, and counsel have cited Theological Seminary v. People, 189 Ill. 439, 447, 59 N.E. 977, and 29 Am. & Eng. Ency. (2d Ed.) 1105.

It is undoubtedly true that, if one wishes to preclude all inquiry into the truth of the matter by the bar of a former judgment, he must plead it, or in some way show and rely upon it in evidence. If he does not, but relies upon the merits of a case, he cannot complain that the whole matter is open without regard to the estoppel. Union Bank v. Memphis, 111 F. 561, 49 C.C.A. 455; S.P. Rd. Co. v. U.S., 168 U.S. 1, 18 Sup.Ct. 18, 42 L.Ed. 355; U.S. v. Bliss, 172 U.S. 321, 19 Sup.Ct. 216, 43 L.Ed. 463. This is so even though the former judgment was by the same court. Jourolmon v. Massengill, 86 Tenn. 81, 5 S.W. 719. But whether a failure to plead such an estoppel upon one trial when the defense was available should operate to prevent reliance upon it upon a subsequent trial is a matter of doubt, complicated in this case by the interposition of a second writ of error between the two trials. This question we shall pass by, particularly as the plaintiff below seems to have made no objection upon this ground to the plea and obtained no ruling from the trial court.

It has not escaped attention that the judgment relied upon as a bar to this suit was at the time it was pleaded pending upon writ of error in the Supreme Court of Ohio. The distinction between a review by writ of error of a judgment at law and an appeal in equity cases is elementary. The latter, when perfected, uproots the decree and carries the case up for rehearing upon law and facts, while the former is in the nature of a new action to annul the judgment, which remains in force until reversed. Nashville Ry. Co. v. Bunn (C.C.A.) 168 F. 862. Inasmuch as a writ of error did not vacate the former judgment, the weight of opinion seems to be that such a judgment may be received in evidence in support of a plea of res adjudicata. 24 Am. & Eng. Ency. 809 et seq.; Ransom v. City of Pierre, 101 F. 665, 669, 41 C.C.A. 585. There is, however, grave danger of injustice if this be the accepted rule, for, if the judgment should be reversed when too late to show the fact, the effect would be to cut off the opposite party from a hearing upon the merits. This difficulty has been met in some jurisdictions by setting aside a judgment which had been influenced by the plea in bar upon the fact of reversal being properly called to the attention of the court having the case under consideration upon writ of error or appeal, or by the court of original jurisdiction, if it had not lost control over the record. Parkhurst v. Burdell, 110 N.Y. 386, 392, 18 N.E. 123, 6 Am.St.Rep. 384; Ransom v. City of Pierre, 101 F. 665, 41 C.C.A. 585. Possibly, if the judgment thus influenced had become final, so as to be beyond the control of the court rendering it, relief might be had in equity, as suggested by Judge Thayer in Ransom v. City of Pierre. See, also, Humphreys v. Leggett, 9 How. 296, 311, 13 L.Ed. 145.

In the case before us it appears that after the judgment below the Supreme Court of Ohio affirmed the judgment whose finality is questioned, and...