Nichols v. Dibrell

• Decision Date: 09 May 1884
• Docket Number: Case No. 5138.
• Citation: 61 Tex. 539
• Parties: JOHN W. NICHOLS ET AL. v. JOS. B. DIBRELL.
• Court: Texas Supreme Court

61 Tex. 539

JOHN W. NICHOLS ET AL.

v.JOS. B. DIBRELL.

Case No. 5138.

Supreme Court of Texas.

May 9, 1884.

APPEAL from Guadalupe. Tried below before the Hon. Everett Lewis.

Appellants, on the 2d day of January, 1882, brought suit against appellee, setting up their homestead in two hundred acres of land, and complaining that the appellee was trespassing upon the same and cutting down the timber, etc., and praying for injunction, etc. They obtained an order for a writ of injunction. Appellee filed a general demurrer and answer, setting up the plea of res adjudicata, and denying that the land was a part of the homestead of Nichols, or that it was ever used as such, or that it was contiguous to the homestead of Nichols, and charging that the suit was brought for the purpose of doing away with and nullifying the judgment pleaded in bar.

The death of John W. Nichols was suggested, and the children of Nichols made themselves parties plaintiff, and adopted the pleading of their parents. Appellee filed a “special demurrer and exceptions” to appellants' petition and replication, asking the court to strike out each clause of appellants' “first supplemental petition and replication,” which motion was sustained by the court and a judgment rendered dissolving the injunction, and that plaintiff take nothing by his suit.

The pleadings in this suit, on the part of the plaintiff, revealed the character of the former suit and of the judgment rendered therein embracing the land, and sought by allegations to review that proceeding; but there was no statement showing that plaintiffs were prevented from making a proper defense in the former proceeding by fraud, accident or act of the opposite party, without fault or negligence on their part.

Rust & Ehringhaus, for appellant, cited: Res Adjudicata and Stare Decisis, secs. 3, 5, 14, 21; Smith's Leading Cases, vol. 2, 663 (6th Am. ed.); S. Packet Co. v. Sickles et al., 24 How. (U. S.), 341 (S. C., 5 Wall. (U. S.), 592); Caruth v. Grigsby, 57 Tex., 259;Gaines v. Hennan, 24 How. (U. S.), 578, 579, and the authorities there cited; Id., 340; Myers v. De Meza, 2 Woods (La. C. C.), 160-163; Cook v. Burnley, 45 Tex., 115;Teal v. Terrell, 48 Tex., 491;Aspden et al. v. Nixon et al., 4 How. (U. S.), 467; Freeman on Judgments, §§ 120, 253 and note, 273, 274 (20 Am. Rep., 578);Withers v. Patterson, 27 Tex., 491;Hamblin v. Warnecke, 31 Tex., 91;Const. 1870, art. XII, sec. 5; Const. 1876, art. XVI, sec. 50; Shriver's Lessee v. Lynn et al., 2 How. (U. S.), 43; Gray v. Brigriardells, 1 How. (U. S.), 636; Freeman on Void Judicial Sales, secs. 35, 42.

W. E. Goodrich, for appellee, cited: Howard v. North, 5 Tex., 290;Taylor v. Harris, 21 Tex., 438;Jones v. Taylor, 7 Tex., 240;Baxter v. Dear, 24 Tex., 17;Cayce v. Powell, 20 Tex., 767;28 Tex., 532;35 Tex., 295;24 Tex., 22;20 Tex., 791;Aspden v. Nixon, 4 How., 467.

WILLIE, CHIEF JUSTICE.

It is well settled that the decision of a court of competent jurisdiction is conclusive, not only as to the subject matter determined, but as to every other matter which the parties might have litigated in the case and which they might have had decided. Danaher v. Prentiss, 22 Wis., 316;Bates v. Spooner, 45 Ind., 493; Le Guen v. Gouerneur, 3 Johns. Cas., 605; Shettlesworth v. Hughey, 9 Rich., 387. Or, as differently expressed, “the plea of res judicata applies not only to points upon which the court was actually required to pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, by exercising reasonable diligence, might have brought forward at the time.” Aurora City v. West, 7 Wall., 106.

This court has frequently indorsed this principle and adhered to it whenever it has been called in question. Lee v. Kingsbury, 13 Tex., 68;Tadlock v. Eccles, 20 Tex., 782;Chilson v. Reeves, 29 Tex., 275;Webb v. Mallard, 27 Tex., 80;Cayce v. Powell, 20 Tex., 767;Taylor v. Harris, 21 Tex., 439;Baxter v. Dear, 24 Tex., 17.

It has been applied, as will be seen from the above authorities, to cases in which the wife was a party to the previous suit, and have held her bound by the judgment in the same manner as any other litigant. Howard v. North, 5 Tex., 290; Baxter v. Dear and Cayce v. Powell, supra.

The only exception, if such it can be called, is where the claim or demand in the one case is different from what it is in the other. For instance, where the former suit was upon different bonds from those upon which the second suit is founded. Cromwell v. County of Sac, 94 U. S., 351. Or where a wholly different tract of land is involved in one suit from what there was in the other.

In such cases it is held that in order to operate as a bar to another action, the point in question must actually have been litigated in the former suit. Cromwell v. County of Sac, supra.

It is sought to apply this exception to the present case, but it is clear that it has no pertinence to it whatever; for the pleadings show that the former suit between Dibrell and the plaintiffs involved the title to a tract of land which included the land upon which Dibrell is alleged in this case to have trespassed.

The only question then is, Was the homestead right such a defense as might have been put in issue and decided in the former action?

That action, according to the pleadings of appellants, was to establish title and recover the whole one hundred and twenty-nine and three-fourths acres, and it was claimed under an execution sale at which it was sold to Dibrell as the property of John W. Nichols, one of the original plaintiffs in this suit, and claimed by his wife, the other plaintiff. In such a case, of course, Dibrell had to recover on the strength of his own title. Anything which would have defeated that title could have been pleaded and proved by the defendants in that case. Hence, the appellants could have set up, not only that the property was at the time of Dibrell's purchase the separate property of the wife, but that it was the homestead of both of them, if it occupied that position at the time. If it did not, it could not have become so since, for it was impossible to acquire a homestead on Dibrell's land, decreed to him by the district and supreme courts.

It is evident,...