Moore v. Van Tassell

• Citation: 126 P.2d 9,58 Wyo. 121
• Decision Date: 26 May 1942
• Docket Number: 2212
• Parties: MOORE v. VAN TASSELL
• Court: United States State Supreme Court of Wyoming

126 P.2d 9

58 Wyo. 121

MOORE v. VAN TASSELL

No. 2212

Supreme Court of Wyoming

May 26, 1942

APPEAL from the District Court, Laramie County; HARRY P. ILSLEY Judge.

Action by Granville Moore against Maude B. Van Tassell to determine ownership of certain corporate stock. From a judgment for plaintiff, the defendant appeals.

Affirmed.

For the appellant, there was a brief and oral argument by James A Greenwood of Cheyenne.

This court had authority to take judicial notice of the record in the mandamus action in view of the defendant's plea of estoppel and res judicata. 23 C. J. 115. The facts show an unusual situation. Sidlo, Simons, Day & Co. v Phillips, 48 Wyo. 390; State v. County Clerk, 43 Wyo. 454. Evidence was received in the mandamus action upon the issue of ownership of stock certificate No. 8. This court reviewed the decision of the trial court in the mandamus action, holding that the case turned upon the question of whether there was a complete gift of stock from Van Tassell to Moore. Counsel for plaintiff cited no authorities except on the question as to what was necessary to establish a gift inter vivos. State v. Van Tassell Company, 53 Wyo. 89. This court held in that case that the only question involved was one of title to the stock. Draper's testimony that he was holding the stock as a trustee should have been excluded. 20 Am. Juris. 400; Donnelly v. United States, 288 U.S. 243. The evidence did not establish a trust. Jones on Evidence (4th Ed.) Sec. 422. The judgment in the mandamus action was upon the merits, free from fraud or collusion, and is conclusive of rights of the parties. 19 Amer. Jur. 716, 908; 30 Amer. Jur. 908, 956, 983; 34 Amer. Jur. 525, 881, 913, 931, 1027 and 1029; Cook v. Elmore, 27 Wyo. 163; Barrett v. Green River, 28 Wyo. 379; Lawer v. Mitts, 33 Wyo. 249; Willis v. Willis, 48 Wyo. 403; Tibbals v. Graham, 50 Wyo. 277; Urback v. Urback, 52 Wyo. 207; Andrews v. National Foundry & Pipe Works, Ltd., 76 F. 167; Rope Co. v. Manoff, 41 F.2d 353; Henderson v. U. S. Radiator Corp., 78 F.2d 674; Commercial Casualty Ins. Co. v. Pipe Line Co., 83 F.2d 412; Doherty Research Company v. Products Company, 107 F.2d 548; Thornton v. Carter, 109 F.2d 316; Gellman et al. v. Karp & Sons, 109 F.2d 391; Graham v. R. R. Co., 118 U.S. 161; Hawkins v. Glenn, 131 U.S. 319; Covington v. McIntire, 206 P. 319; Fahrenwald et al. v. Spokane Savings Bank et al., 35 P.2d 1117; Goddard v. Security Title Co. , 75 P.2d 619. The doctrine of res judicata embodies--(1) A final judgment by a court of competent jurisdiction upon the merits, and constitutes a bar to another action upon the same cause before the same or another tribunal. (2) The judgment in such case is conclusive and cannot be litigated again between the parties or their privies. Lawer v. Mitts, 33 Wyo. 249; Emerson Company v. Riverton Company, 43 Wyo. 67; Cook v. Elmore, 27 Wyo. 163. The rule as to the effect of affirmance on appeal is stated in 34 C. J. 1336; Russell v. Russell, 134 F. 840. Granville Moore was the real party plaintiff in the mandamus suit and likewise in the present case. Divide Creek Irr. Dist. v. Hollingsworth, 72 F.2d 859. The ownership of the stock was put in issue by the pleadings in the mandamus action. State v. Van Tassell, 53 Wyo. 99. The same evidence was received in that action as was presented in the case at bar. Plaintiff is estopped to again try that issue. Lawer v. Mitts, supra. Appellant was the sole party in interest in the mandamus action. The trial court decided the issue of ownership of the stock in the mandamus suit. 19 Amer. Jur. § 77. The question is therefore res judicata. Covington v. McIntire, 206 P. 319; 34 C. J. 831. Res judicata is a defense in the present action. National Nut Co. v. Sontag Stores, 107 F.2d 318; Doherty Company v. Mineral Products Company, 107 F.2d 548; Larson v. Company, 292 U.S. 20; Thornton v. Carter, 109 F.2d 316. The issue of ownership of this stock cannot again be litigated between the same parties or their privies. Willis v. Willis, 48 Wyo. 403; Guettel v. U.S. 95 F.2d 229; Urback v. Urback, 52 Wyo. 207. The parties to this case were the real parties in interest in the former case. State v. Van Tassell Company, 53 Wyo. 96; Tibbals v. Graham et al., 50 Wyo. 277. An unconditional affirmance of a judgment is final and conclusive for all purposes upon all issues submitted and determined. Art. V, § 2, Constitution; § 89-4801, R. S. 1931; 3 Bancroft's Probate Practice, 1895; 2 R. C. L. 276; 30 Amer. Jur. 956; 34 C. J. 1172; Murrel v. Stockgrowers National Bank of Cheyenne, 74 F.2d 827. It is not necessary that the decision affirmed be correct. Thornton v. Carter, 109 F.2d 316; Murrell v. Bank, 74 F.2d 827; Rock Springs Coal Company v. Black Diamond Coal Company, 39 Wyo. 379. The issue of ownership was litigated by consent of the plaintiff in the mandamus action and is final. 34 C. J. 921. Plaintiff was estopped by laches. State v. Van Tassell, 53 Wyo. 89; 21 Amer. Jur. 655; 3 Bancroft's Probate Practice, § 1154. A gift inter vivos can only be executed in the present during the lifetime of the donor, accomplished by a complete divesting of control over the thing given independent of any contingency of death. Section 88-104, R. S. 1931; Hecht v. Shaffer, 15 Wyo. 34; Pardee v. Kuster, 15 Wyo. 368; Stewart v. Collins, 36 Wyo. 210; Begovich v. Kruljac, 38 Wyo. 365; Dern v. Hitshew, 44 Wyo. 190; In re King's Estate, 48 Wyo. 453. The record discloses that plaintiff was to act as trustee for Blanche Wigginton.

For the respondent there was a brief and oral argument by Carleton A. Lathrop and John C. Pickett of Cheyenne.

The decision in the mandamus action, Moore v. Van Tassell Company, led to the filing of the present suit. Plaintiff's cause of action is not barred by the doctrine of res judicata. The authorities cited by appellant are not in point with the facts of this case. The ownership of the stock was not determined in the mandamus action. 34 C. J. 1173; DeBow v. Wollenberg (Ore.) 97 P. 717. The same parties are not involved in both cases. Mrs. Van Tassell was not a party to the mandamus suit. Cook v. Elmore, 27 Wyo. 163. An action in mandamus is not available to determine title to property. A valid gift of one hundred shares of capital stock was made to Granville Moore as shown by the evidence. In re Brady's Estate, 239 N.Y.S. 55; Stewart v. Collins (Wyo.) 254 P. 137; In re Mills' Estate, 158 N.Y.S. 1100; Fletcher on Corporations, Vol. 6, p. 6710; Begovich v. Kruljac, 38 Wyo. 365; Allred v. Allred (Ariz.) 111 P.2d 68. This Court has held that the owner's delivery of certificates of stock to the corporation, so that a transfer could be made upon the books of the corporation, was sufficient delivery to the donee. In re King's Estate, 49 Wyo. 453; Stewart v. Collins, 36 Wyo. 210. Other authorities bearing on this question are: Hecht v. Shaffer, 15 Wyo. 34; In re Fetzer's Estate (Ohio) 26 N.E.2d 207; York's Ancillary Administrator v. Bromley (Ky.) 151 S.W.2d 28. The evidence shows a valid gift of a legal stock certificate to the plaintiff and the judgment of the trial court should be affirmed.

OPINION

PER CURIAM.

The matter at bar presents a direct appeal proceeding to review a judgment of the district court of Laramie County, Wyoming, wherein an alleged gift of corporate stock was confirmed in the plaintiff, Granville Moore, and against the asserted right thereto of Maude B. Van Tassell, defendant, a general finding in said judgment being made in plaintiff's favor. One phase of this litigation has already been considered by this court in our case No. 2037, State ex rel. Moore v. Van Tassell Real Estate and Live Stock Company, 53 Wyo. 89, 79 P.2d 476.

The action last mentioned was one brought by Granville Moore to procure a writ of mandamus directed to the corporation aforesaid, requiring it to permit inspection of its books by Moore as an alleged stockholder therein. The district court of Laramie County denied the writ and we affirmed that ruling on the sole ground that relator's right was "at least debatable". Among the several rules deemed applicable to that matter and which were applied in disposing of it were that "generally title to property will not be tried in a mandamus proceeding"; also that "a writ of mandamus will be refused where the question on which the right thereto depends is debatable"; and, further, that the writ will not issue to enforce a right which is in substantial dispute or as to which a substantial doubt exists; in other words that the right to the writ must be clear.

The instant action was one wherein a judgment was sought by plaintiff Moore against the defendant aforesaid that he was the legal owner of certificate of stock numbered 8, for one hundred shares of stock of the corporation above mentioned, and that she was not, but was without any title thereto. Maude B. Van Tassell defended, denying plaintiff's claimed ownership of the stock and stock certificate in question, asserting that plaintiff was guilty of laches in making claim to said check, and that plaintiff's right to said stock was decided adversely to him in the mandamus proceeding aforesaid, with the result that that issue is res adjudicata now.

The pleadings of the parties and the judgment rendered by the trial court in the mandamus action are very fully described in the opinion as filed in our case No. 2037 aforesaid, and it will consequently be unnecessary to restate them here.

Before advancing further in discussing the case at bar it may be here mentioned that the district court sustained a demurrer to the defendant's asserted defense of laches. In this we think the court was clearly right, especially when viewed in the light of the ultimate finding and judgment now under review and the result we find...