Philipowski v. Spencer

• Decision Date: 06 February 1885
• Docket Number: Case No. 5175.
• Parties: GEO. PHILIPOWSKI v. ANNIE E. SPENCER ET AL.
• Court: Texas Supreme Court

63 Tex. 604

GEO. PHILIPOWSKI

v.ANNIE E. SPENCER ET AL.

Case No. 5175.

Supreme Court of Texas.

Feb. 6, 1885.

APPEAL from Falls. Tried below before the Hon. B. W. Rimes.

This was an action of trespass to try title, brought by George Philipowski, S. Samuels and W. A. Patrick, against Annie E. Spencer and her husband, H. F. Spencer, for the recovery of two hundred acres of land; suit filed June 25, 1883.

Defendants pleaded general denial or not guilty, and specially that the land was the separate property of defendant Annie E. Spencer; that it was purchased with means owned by her long before her intermarriage with her co-defendant H. F. Spencer, and was not subject to the debts of her husband; that the only title plaintiffs had was acquired by virtue of a sale under execution issued out of the district court of Falls county, Texas, on a judgment obtainedin that court against H. F. Spencer at the suit of C. H. Rosenthal and S. Samuels, who, it was alleged, at the time of obtaining that judgment and before, knew that the lands were her separate property, and that the plaintiffs, at the time of sale under execution and long before, knew all the facts and knew that the land they pretended to buy at that sale under execution was Mrs. A. E. Spencer's separate property. The case was tried before the court without a jury, and judgment was rendered for defendants.

B. L. Aycock, for appellants, on overruling the motion for continuance, cited: Arts. 2852, 2853, R. S.; Rose v. Houston, 11 Tex., 326;Huston v. Curl, 8 Tex., 243;Chapman v. Allen, 15 Tex., 284;Love v. Robertson, 7 Tex., 6; Collins v. Turner, Law Rep. of Nov., 1882, p. 560; Eastham v. Roundtree, 56 Tex., 115; Broom's Legal Maxims, 730.

Oltorf & Holland, for appellees, that the judgment was correct, cited: R. S. of Texas, arts. 2851, 4802; Kirk v. Navigation Co., 49 Tex., 213; Parker v. Coop, Tex. Law R., July, 1883, 178, and authorities there cited; Spencer v. Rosenthal, 58 Tex., 4.

WALKER, P. J. COM. APP.

It is assigned as error that the court erred in refusing a continuance to the plaintiffs. Although it appears from the judgment that the plaintiffs moved for a continuance, and that the application was overruled, and the action of the court was excepted to by the plaintiffs, there is no bill of exceptions in the record showing that action of the court, nor the facts and circumstances attending it. Without such bill of exceptions this court will not revise the ruling complained of. See Sayles & Bassett's Prac., sec. 583, and authorities there cited, and Cone v. Wright et al., decided at this term. Besides, the affidavit for continuance does not show sufficient diligence to entitle the plaintiffs to complain that the court improperly exercised its discretion, nor that they had complied with the statutory requirement in respect to showing diligence; neither does it appear that this was their first or second application to continue. Arnold v. Hockney, 51 Tex., 48.

The plaintiffs filed a supplemental petition by way of replication to Mrs. Spencer's claim of separate property and ownership of the land, alleging that her title to the same had been “fully and finally determined against her in cause No. 1940, entitled Annie E. Spencer v. C. H. Rosenthal et al., in the district court of Falls county, on the 1st day of March, A. D. 1882, district court minutes, page 359.” Alleging further that the same was subsequently affirmed on appeal by the supreme court. The plaintiffs further alleged “that the said Annie E., by putting her title in issue and having the issue finally determined against her, is estopped and barred to further litigate with the plaintiffs; that the parties were the same; and the subject-matter the same in that suit as is here attempted to be set up again--the same right and title.”

The defendant Annie E. Spencer excepted to this pleading upon the following grounds, viz.: “That the plea setting up the judgment in cause No. 1940, in this court, is insufficient in law, because nowhere does it appear that any trial was ever had on the merits of said cause; and defendant here alleges that an inspection of the records will show that the suit was by petition for writ of injunction, wherein plaintiff therein endeavored to have her title to said land adjudicated; and claiming that a sale under a writ of execution, issued at the suit of plaintiff in this suit against defendant's co-defendant, H. F. Spencer, and levied on the land sued for by plaintiff, would cast a cloud on this defendant's (A. E. Spencer's) title to said land.” Defendant further alleged, in that connection, that the injunction was dissolved because of insufficient averments in her bill to entitle her to equitable relief; that no trial was ever had on the merits.

The court properly sustained the defendant's exceptions to the plaintiffs' supplemental petition. It did not show by any distinct allegation the material and essential fact necessary to constitute the proceedings referred to res adjudicata, that the title of Mrs. Spencer to the land was involved in the issues determined in cause No. 1940 under circumstances that rendered the decision made in that case decisive of the question of her right and title to the land. It was but the mere construction of the pleader and a statement of his legal conclusions to allege that her title had been “fully and finally determined against her” in said cause, and that “by putting her title in issue, and having the issue finally determined against her, she is estopped and barred to further litigate with plaintiffs.”

Upon what issue was her title determined? What was the subject of litigation between the parties to that suit? From anything that appears by plaintiffs' allegations, it might be true that in that suit her title may have been put in issue by her in some collateral or incidental manner, or in some connection or relation, that the determination of the issue against her would in no wise affect her title, or impugn her right to assert it in another suit with the same party.

A matter is not generally regarded as res adjudicata unless there be a concurrence of the four conditions following, namely: 1st. Identity in the thing sued for; 2d. Identity of the cause of action; 3d. Identity of persons and of parties to the action; 4th. Identity of the quality in the persons for or against whom the claim is made. 2 Bouvier, Dic., 467; Benz v. Hines, 3 Kan., 390; Atchison, etc., R. R. Co. v. Commissioners, 12 Id., 127; Bradley v. Johnson, 49 Ga., 412; Davis v. Brown, 94 U. S. (4 Otto), 423; Howard v. Kimball, 65 Me., 308; 6 Wait's Act. & Def., 770.

It does not appear from the plaintiffs' allegations that there was identity of the cause of action; that the issues in the case involved for its decision the defendants' right and title to the property. As a general rule, a former judgment will not be a bar to further litigation, unless the same vital point was put directly in issue and determined, or was fairly within the scope of the pleadings. 6 Wait's Act. & Def., 785, and cases there cited.

A judgment or decree is not conclusive as to collateral questions, nor of any matter to be inferred by argument from the judgment. 6 Wait's Act. & Def., 785, and authorities cited. It is also there said: “The rule as sometimes stated is, that a judgment is not technically conclusive of any matter, if the matter is not such that it had of necessity to be determined before the judgment could have been given.” Citing Niday v. Harvey, 9 Gratt. (Va.), 454; Hunter v. Davis, 19 Ga., 413; Church v. Chapin, 35 Vt., 223; Packet Co. v. Sickles, 5 Wall. (U. S.), 580. “And it has been frequently held that a defendant pleading a previous judgment must show that the cause of action was the same.” Citing Cummings v. Colgrove, 25 Pa. St., 150; Smalley v. Edey, 19 Ill., 207;Eaton, etc., R'y Co. v. Hunt, 20 Ind., 457;Dunlap v. Edwards, 29 Miss., 41;Campbell v. Butts, 3 N. Y. (3 Comst.), 173.

The pleading of the plaintiffs failing thus to show what were the matters in issue and the subject of controversy in the suit referred to, its allegations were manifestly insufficient; nor were they in anywise aided by making reference to the minutes of the district court containing the judgment. Neither the court nor the parties were required to notice or inspect the record referred to; if the plaintiffs relied upon the entry referred to, they should have set it forth in their pleading in some appropriate manner; a reference made to it had no significance further than as an averment of the existence of such a judgment, but it did not have the effect to aid the averments in the supplemental petition in respect to its contents...