Reinhart v. Guar. Abstract Co.

• Decision Date: 08 March 1949
• Docket Number: Case Number: 32912
• Citation: 205 P.2d 881,201 Okla. 334,1949 OK 40
• Parties: REINHART & DONOVAN CO. v. GUARANTY ABSTRACT CO.
• Court: Oklahoma Supreme Court

1949 OK 40

205 P.2d 881

201 Okla. 334

REINHART & DONOVAN CO. v. GUARANTY ABSTRACT CO.

Case Number: 32912

Supreme Court of Oklahoma

Decided: March 8, 1949

Syllabus

¶0 1. JUDGMENT - Res judicata and estoppel by judgment.

A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a court of competent jurisdiction, is conclusively settled by the judgment therein, so far as concerns the parties to that action, and cannot be again litigated in any future action between such parties in the same court, or in any other court of concurrent jurisdiction upon the same or a different cause of action.

2. SAME - One who conducts litigation in another's name is estopped by the judgment therein.

A party who institutes and conducts a litigation in another's name is as conclusively estopped by the decision and judgment therein from again litigating the same issues with his adversary as is the party in whose name he carries on the contest.

3. APPEAL AND ERROR - Sufficiency of evidence in law action tried to court.

In a law case tried before the court without the intervention of a jury, the judgment and findings of the court have the same force and effect as the verdict of a jury, and will not be disturbed by the Supreme Court where there is any competent evidence reasonably supporting it.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Action by the Reinhart & Donovan Company against the Guaranty Abstract Company et al. Judgment for defendants, and plaintiff appeals. Affirmed.

Twyford, Smith & Crowe, of Oklahoma City, for plaintiff in error.

Bush, Gable & Gotwals, of Tulsa, for defendants in error.

LUTTRELL, J.

¶1 This action was brought by the Reinhart & Donovan Company, plaintiff, against the defendants, Guaranty Abstract Company and National Surety Corporation, surety on the bond of the abstract company. The case was tried to the court without a jury, and judgment rendered for defendants. Plaintiff appeals.

¶2 Plaintiff's petition alleged the purchase of certain real property in Tulsa county by it in 1938; the preparation of an abstract covering said property by the abstract company; that the abstract company prepared and incorporated in the abstract certificates which were erroneous in that they did not reflect the true state of the records of the county treasurer of Tulsa county relating to taxes for the years 1931, 1932, and 1935; that because of the error in the certificates, which showed that all taxes against the property purchased had been paid, plaintiff did not deduct the amount of the taxes and penalties actually due from the purchase price it paid for the property, and was therefore damaged in the approximate sum of $7,000, which sum it sought to recover from the abstract company and the surety on its bond. Thereafter, by amendment to its petition, plaintiff alleged the payment of the taxes due and asked for judgment against defendants for the amount actually paid by it.

¶3 In their answers the defendants, among other defenses, set up the defense of res judicata and estoppel by judgment, alleging that by reason of a judgment rendered in the United States District Court for the Northern District of Oklahoma, and affirmed by the Circuit Court of Appeals for the Tenth Circuit, in National Life & Accident Insurance Co. v. Parkinson, County Treasurer of Tulsa County, Guaranty Abstract Company, a corporation, and National Surety Corporation, a corporation, 136 Fed. 2d 506, the matters sought to be litigated in the instant case had been determined in favor of defendants, and that plaintiff was bound thereby. The judgment of the trial court in the instant case was based solely upon its finding and conclusion that plaintiff was estopped by the judgment in the federal case.

¶4 From the evidence it appears that prior to the time plaintiff acquired the property involved, the county commissioners had reduced the tax valuations of the property for the years 1931, 1932, and 1935, pursuant to the provisions of article 14, ch. 66, S. L. 1937, and the county treasurer showed on his records that the taxes for those years had been paid in full. The certificate of the abstract company made to plaintiff recited that the records of the treasurer so showed. Subsequent to the acquisition of the property plaintiff, in 1939, mortgaged it to National Life & Accident Insurance Company. At that time the abstract company recertified the abstract, showing all taxes paid.

¶5 In 1940 this court, in State ex rel. Tharel v. Board of County Commissioners of Creek County, 188 Okla. 184, 107 P.2d 542, held that the reduction of valuations pursuant to said Act was illegal and void, and that it was the duty of the county officials, where such reductions had been made, to restore the original valuations and taxes due so that the same would be reflected by the county records, and to collect the delinquent taxes shown by the corrected records to be due. After the decision in that case the county treasurer of Tulsa county changed the records to show a portion of the taxes against the property acquired by plaintiff delinquent for 1931, 1932, and 1935.

¶6 The evidence further shows that after plaintiff was advised that the records of Tulsa county showed that the taxes were delinquent as above stated its attorneys wrote to the agent of the mortgagee the following letter under date of August 9, 1941:

"Mr. R.D. Cravens, "132 N.W. First Street, "Oklahoma City, Oklahoma.

"Re: Lot 7, Block 117, Original Town of Tulsa - K. C. Auto Hotel.

"Dear Sir: We represent The Reinhart & Donovan Company, the owners of the above property. On September 25th, 1939, that company executed to you a note for $85,000.00, secured by a mortgage on the real estate. You transferred the note and mortgage to The National Life and Accident Company on October 22nd, 1939.

"Our clients purchased this property relying on an abstract and certificate prepared by the Guaranty Abstract Company of Tulsa, Oklahoma, which had filed an abstracter's bond, executed by the National Surety Corporation. Evidently both you and the National Life and Accident Company relied on the same abstract and the same, and later, certificates made by the same company. This abstract and the respective certificates recited that the records of the county treasurer showed all taxes assessed to have been paid in full. The records actually showed that on September 21st, 1937, a certificate of reassessment, executed by the Board of County Commissioners of Tulsa County had been filed with the county treasurer by J.P. Norton, receiver, which certificate reduced the assessed value of the property for the years 1931, 1932 and 1935. This operated to reduce the taxes for these three years in the total reduction of over $4,300 plus penalties. He then paid the reduced amount (some $9,000.00) and did not pay the $4,300.00. None of this was reflected by the abstract. However, it now seems that the matter of the assessment of the real estate for those years was pending in an action in the District Court entitled J.P. Norton, Receiver, vs. Tulsa County, No. 64801-2 and on September 8th, 1937, an order had been entered in that case approving the reduction of the assessment and the taxes. Before paying the taxes in the reduced amount the receiver also procured an order from the court appointing him. This order approved the proposed settlement and payment. None of these proceedings and orders were reflected by the abstract.

"On November 19th, 1940, the Supreme Court of Oklahoma in the case of State ex rel. vs. Board of County Commissioners of Creek County, No. 29511, 107 P. 542, declared unconstitutional (page No. 2) the act of the Legislature which had authorized the reassessment made by the county commissioners. This also declared that the Board of County Commissioners is not a court and its orders not res judicata. About January 1st, 1941, the county treasurer of Tulsa County, cancelled on his records, the payment of taxes made on this property. He now shows a balance of taxes due for 1931, 1932 and 1935 in the amount of more than $4,300.00 together with additional penalties. No order of the Board of County Commissioners or of any court directed him to make this entry. The Reinhart and Donovan Company learned of this action about three weeks ago. Since then we have obtained certified copies of all the records of the County Clerk and County Treasurer of Tulsa County pertaining to this transaction. We have also briefed the legal points involved.

"This case may be distinguished from the Creek County case on account of the orders made by the District Court of Tulsa County approving the settlement and payment.

"The most effective method by which to settle this question would be to bring a civil action in the United States District Court for the Northern District. The object of this action would be to obtain a declaratory judgment determining the status of the disputed taxes. If determined that they have been fully paid an appropriate judgment would be entered. If determined to be not paid then an alternative judgment could be rendered against the abstract company, and its surety, for the amount of the taxes and expenses of litigation.

"The Reinhart & Donovan Company is an Oklahoma Corporation. The Abstract Company is an Oklahoma Corporation. The National Surety Corporation is a New York Corporation. The county treasurer is a citizen of Tulsa County, Oklahoma.

"The only manner in which the Federal court could acquire jurisdiction would be to institute a civil action with the National Life and Accident Insurance Company as plaintiff and The Reinhart & Donovan Company the Abstract Company, the Surety Company and the treasurer as defendants.

"The Reinhart & Donovan Company desires to have this action brought under its supervision, by its attorneys, but at its expense. If will, of course, protect the mortgagee from any loss or expense.

"Awaiting your advice, we are,

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