Pettis v. Mclain

• Citation: 98 P. 927,21 Okla. 521,1908 OK 135
• Decision Date: 24 June 1908
• Docket Number: Case Number: 2054 OK Ter
• Parties: PETTIS et ux. v. MCLAIN et al.
• Court: Supreme Court of Oklahoma

1908 OK 135

98 P. 927

21 Okla. 521

PETTIS et ux. v. MCLAIN et al.

Case Number: 2054 OK Ter

Supreme Court of Oklahoma

Decided: June 24, 1908

Syllabus

¶0 1. APPEAL AND ERROR--Review--Findings of Referee--Evidence--Presumption of Sufficiency. Where the findings of a referee are, in the main, predicated upon the issues joined by the pleadings, it will be presumed, on review in this court, where the evidence has not been preserved by a bill of exceptions for consideration here, that there was sufficient testimony introduced on the trial to warrant the findings.

2. JUDGMENT--Res Judicata. A judgment rendered upon a demurrer to a petition or complaint between the same parties and on the same facts pleaded in a subsequent action is final and conclusive until reversed on appeal, and is a bar to any subsequent action based thereon.

Error from District Court, Kingfisher County; before C. F. Irwin, Judge.

Action to vacate judgment by Jerry Pettis and wife against J. K. McLain and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

On the 29th day of July, A. D. 1901, the plaintiffs in error, as plaintiffs, instituted this action against the defendants in error, as defendants, in the court below for the purpose of having vacated a certain decree theretofore rendered in favor of said defendants against said plaintiffs in the district court of Kingfisher county, territory of Oklahoma, wherein the said defendants were adjudged to have a lien on certain lands, the property of the plaintiffs, in the sum of $ 600, and costs and interest, alleging that the same was procured through fraud.

Plaintiffs afterwards filed an amended petition, setting up said allegations in detail, and thereafter in due time defendants separately answered, denying all the allegations of fraud and pleading a former adjudication.

Said cause was duly referred to a referee, and he thereafter reported his findings of fact and conclusions of law. Paragraph 7 of said findings of fact is as follows:

"That on February 23, 1898, Pettis and wife began a suit in the district court of Kingfisher county to set aside the judgment rendered in said foreclosure suit wherein they admit the receipt of $ 400, but they say they expected to get $ 600 at the time the loan was made. Said petition was heard and disposed of on demurrer, and a decision made that the petition was not sufficient, and leave given plaintiffs to amend, which, it seems, was never done, and the case finally dismissed and judgment entered against plaintiffs for cost."

Paragraph 5 of his conclusions of law is in haec verba: "That there has been a former adjudication of the same matter upon the demurrer to the petition of February 23, 1898." No bill of exceptions was allowed and signed by the referee preserving the evidence taken before him. The findings of fact by him were based upon the issues joined by the pleadings.

Buckner & Buckner, for plaintiffs in error.

Stevens & Myers, for defendants in error.

WILLlAMS, C. J.

¶1 (after stating the facts as above). Where a cause is referred to a referee to find and report the facts and conclusions of law to the court, and no bill of exceptions is allowed and signed by him as referee preserving the evidence, it has been repeatedly held by this court that the question of the sufficiency of the evidence to support the findings of the referee cannot be considered. Howe v. City of Hobart, 18 Okla. 243, 90 P. 431; Iralson v. Stang et al., 18 Okla. 423, 90 P. 446; Block v. Pearson, ...