Newhall v. Mahan, & Lewis v. Mahan, Sec. of S.

• Decision Date: 01 November 1932
• Parties: Newhall v. Mahan, Secretary of State. Lewis v. Mahan, Secretary of State, et al.
• Court: United States State Supreme Court — District of Kentucky

245 Ky. 626

Newhall v. Mahan, Secretary of State.

Lewis v. Mahan, Secretary of State, et al.

Court of Appeals of Kentucky.

Decided November 1, 1932.

1. Judgment. — Recital of judgment that defendants were before court by service of process or voluntary appearance imports absolute verity, and is conclusive, except in direct attack on judgment (Civil Code of Practice, secs. 340, 414, 518).

2. Judgment. — Final judgment, rendered on merits by court having jurisdiction of subject-matter and parties, is conclusive on rights of parties and their privies in another suit involving same points and issues.

3. Judgment. — Final judgment on merits is estoppel not only on points court was actually required to decide, but on every point which parties might properly have brought forward by reasonable diligence.

4. Judgment. — Judgment is conclusive in second action between same parties, involving wholly or partly same cause of action, on all

matters which were or might have been determined in first action.

5. Judgment. — Rule of "res judicata" means that no question which has or could have been litigated before and determined by judgment of court of competent jurisdiction can be relitigated by same parties or their privies.

6. Judgment. — Presentation of new question in second action between parties to former action does not prevent operation of res judicata rule.

7. Judgment. — Persons suing to require secretary of state to certify them as district congressional nominees cannot escape operation of res judicata rule by failing to make parties other candidates seeking like relief in prior consolidated actions, wherein judgment holding redistricting act invalid was rendered; they being interested, necessary, and proper parties (Ky. Stats., Supp. 1932, sec. 418a).

8. Judgment. — Judgment of Court of Appeals, declaring Congressional Redistricting Act invalid, is binding and conclusive on all parties thereto until vacated, set aside, or reversed, whether right or wrong (Ky. Stats., Supp. 1932, sec. 418a).

9. Appeal and Error. — Parties not objecting to or appealing from judgment, nor named as appellees on adverse party's appeal, cannot enter motion to dispose of appeal with their appeal from judgment in their subsequent action for same relief.

Appeal from Franklin Circuit Court.

EDWARD C. O'REAR for appellant Lewis.

T.B. McGREGOR and E.C. O'REAR for appellant Newhall.

BAILEY P. WOOTTON, Attorney General, and OVERTON S. HOGAN, Assistant Attorney General, for appellees.

OPINION PER CURIAM.

Affirming.

The appeals in the above-titled actions are presented for consideration and disposal on the same record. The questions involved in the two are identical. The appellant Newhall, in the first entitled action, seeks to have himself declared the regular Republican nominee for Representative in Congress of the United States of the Fifth District of Kentucky, to be voted for at the election on November 8, 1932, and to require the secretary of state to certify him as such nominee. In the second, William Lewis asks that he be declared the regular nominee of the Republican Party for Representative in the Congress of the United States of the Ninth District of Kentucky, and to require the secretary of state to certify him as such nominee to be voted for at the November, 1932, election. He also asks to have it adjudged that John Marshall Robsion, before the regular primary on August 6, 1932, had withdrawn his declaration as a candidate for such nomination for this office.

In July, 1932, an action was filed in the Franklin circuit court, the circuit court in which the present actions were instituted, by J. Gregory Bruce, against Sara W. Mahan, secretary of state; another was filed by Sara W. Mahan, secretary of state, against R.S. Mason and fifty-three others, all of whom were announced candidates for Congress, including the appellants in the present actions; the third proceeding was filed by Charles H. Morris against Sara W. Mahan, secretary of state. The three were, by an appropriate order of the court, consolidated and heard and tried as one action. The relief sought by Sara W. Mahan, secretary of state, "was a declaration of the law of the rights of the Democratic and Republican nominees to the office of Representative in Congress, to be voted for as nominees and candidates for their respective parties for such office on the 8th day of November 1932," and her duties in respect thereto.

In his action, J. Gregory Bruce asked that the secretary of state issue to him and to those for whom he sued "a certificate of nomination for candidate of Representative in Congress from the State at Large," and, further, "to direct her at the proper time to certify to each and every county clerk of the Commonwealth of Kentucky, himself and the other nominees as such candidates to be placed, as is provided by law, on the regular ballot at the general election to be held in each county of this State on November 8, 1932, under the respective party devices and devices of the respective parties as indicated in the respective notifications and declarations."

Charles H. Morris, for himself only, sought the identical relief asked for him by J. Gregory Bruce.

The final judgment entered in these consolidated cases recites "that all party defendants are properly before the court, either by summons duly served, or by entry of appearance in person or by counsel."

The recitation of the judgment showing that the appellants were before the court by the service of process or by voluntarily entering their appearance imports absolute verity, Siler v. Carpenter, Jr., 155 Ky 640, 160 S.W. 186; Miracle v. Purciful, 178 Ky. 212, 198 S.W. 753, and is conclusive, except in a direct attack of the judgment under sections 340, 414, and 518, Civil Code of Practice. Baker v. Baker, Eccles & Co., 162 Ky. 683, 173 S.W. 109, L.R.A. 1917C, 171; Harrod v. Harrod, 167 Ky. 308, 180 S.W. 797; Taylor v. Asher, 183 Ky. 563, 209 S.W. 533; Crider v. Sutherland, 186 Ky. 7, 216 S.W. 57; Johnson v. Carroll, 190 Ky. 689, 228 S.W. 412; Dye Brothers v. Butler, 209 Ky. 199, 272 S.W. 426; Wolverton v. Baynhan, 226 Ky. 214, 10 S.W. (2d) 837; Mussman v. Pepples, 232 Ky....