Woodworth v. Town of Hennessey

• Decision Date: 12 March 1912
• Docket Number: Case Number: 1576
• Citation: 1912 OK 239,32 Okla. 267,122 P. 224
• Parties: WOODWORTH, County Clerk, v. TOWN OF HENNESSEY.
• Court: Oklahoma Supreme Court

1912 OK 239

122 P. 224

32 Okla. 267

WOODWORTH, County Clerk, v. TOWN OF HENNESSEY.

Case Number: 1576

Supreme Court of Oklahoma

Decided: March 12, 1912

Syllabus

¶0 JUDGMENT--Conclusiveness--Matters Concluded. 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 persons in privity with them, and cannot be again litigated in any future action between such parties or privies, in the same court, or in any other court of concurrent jurisdiction upon the same or a different cause of action.

Error from District Court, Kingfisher County; A. H. Huston, Judge.

Action in mandamus by the Town of Hennessey against George H. Woodworth, County Clerk of Kingfisher County. Judgment for plaintiff, and defendant brings error. Reversed.

M. W. Hinch, for plaintiff in error.

R. W. Wiley, for defendant in error.

ROBERTSON, C.

¶1 January 14, 1903, the trustees of the town of Hennessey passed Ordinance No. 73, requiring thereby the construction of a sidewalk along and in front of certain lots in said town, including lots 20 and 21, in block 36, in Thompson's Addition. The ordinance required the sidewalk to be constructed of either brick, stone, or cement, and to be built within six months from the 1st day of January, 1903. Said ordinance further provided that, in the event the owners of the property failed to build the walk within the time specified, the board of trustees should levy a special tax to meet the expense of such construction. On July 7, 1904, the town clerk of Hennessey delivered to the county clerk of Kingfisher county a tax certificate showing that the owner of the lots involved in this suit had failed to construct the sidewalk, and that such walk had been constructed by the town of Hennessey, and which said certificate also showed that the sidewalk had been constructed of cement and brick; that it was nine feet wide, instead of eight, as required by the ordinance; that it had a curbing composed of a brick wall eight inches wide, two feet four inches deep, and a curbing on the inside of the walk four inches thick, and two feet four inches deep, plainly showing that a different walk than the one ordered by the ordinance had been constructed by the town. On July 22, 1904, the Pabst Brewing Company, owner of said lots, began an injunction proceeding in the district court of Kingfisher county against J. E. Burns, county clerk of said county, alleging, among other things, that said Burns, as such county clerk, was about to spread such assessment as aforesaid on the tax rolls of said county; that said assessment levying the tax purported to be for a sidewalk built along the lots hereinbefore described, and was 9 feet 2 1/2 inches wide, and had been built by one Frank Lowry, who was not authorized by the owner or by any one else legally to make such improvement; that said town of Hennessey had no ordinance authorizing the construction of such walk as the said tax certificate shows had been built, and that plaintiff, the owner, had no notice to build such walk, and that all proceedings taken by the town of Hennessey in and about the making of such assessment and levy against said lots were void, and that Burns as county clerk, unless restrained, would spread said tax on the tax rolls of said county, and the same would thereby become a cloud on plaintiff's title, etc. On a full hearing at the trial, with both parties represented by counsel, the district court of Kingfisher county granted the prayer of said plaintiff, and issued a permanent injunction against the county clerk, enjoining the entering and spreading of said assessment on the tax rolls against said lots. From this decree of the district court no appeal was ever prosecuted, and said judgment thereby became final. The matter rested thus until October 23, 1909, when the town of Hennessey filed this action in mandamus in the district court of said county, and sought thereby to compel the plaintiff in error, as county clerk of Kingfisher county, to extend the said tax, with additional costs, on the tax rolls of said county. The application for the writ of mandamus shows that on April 2, 1908, the trustees of said town of Hennessey passed Ordinance No. 134, which purports to levy a special tax on said lots, and recites, among other things, that on March 22, 1908, the town marshal of said town returned a tax bill against said lots in compliance with Ordinance No. 73; that the owners of said lots are nonresidents, and that no agent could be found in Kingfisher county; and that the costs of constructing such sidewalk should be assessed to said lots and made a lien thereon, together with the additional costs made by the town in attempting to correct the special tax proceedings which had been enjoined. The special tax bill mentioned appears to have been issued on March 22, 1908, and recites the old assessment made January 14, 1903, together with the costs of labor and material, and sets out the amount the owner was required to pay, and that, if not paid within ten days from service of the notice, a tax warrant would issue therefor, or, in lieu thereof, the tax would be certified to the county clerk, with request to spread the same upon the tax rolls of the county to be collected as other taxes. The application for the writ of mandamus shows on its face that the sidewalk constructed in front and along said lots was of a different size and character than that required by the ordinance under which this sidewalk was constructed. The defendant answered, and alleged that he was the county clerk of Kingfisher county and the successor of J. E. Burns, who was county clerk of said county in 1904 and defendant in a cause then pending in the district court of said county wherein Pabst Brewing Company was plaintiff and said Burns, as county clerk, was defendant, and, in addition, pleaded the entire record of said cause, including the petition, answer, and judgment, and further alleged that the identical questions raised in the mandamus suit had been at issue and were decided by the court in the former cause, and that, therefore, the same had become res adjudicata, and could not be further inquired into. The cause came on for trial and on final hearing a peremptory writ was awarded and the county clerk required to extend the tax as prayed for. From this judgment the clerk appeals.

¶2 Counsel for plaintiff in error assigns two specifications of error in his petition in error and also urges them in his brief, and which are, first, all the questions involved in this proceeding were fully and finally determined in the action of the Pabst Brewing Company against J. E. Burns as county clerk, No. 2934, in the district court of Kingfisher county, and which proceedings were pleaded and proved, and in no manner denied by the town of Hennessey at the trial of this case; and, second, all the proceedings taken to levy this special assessment are in direct contravention of the Constitutions of Oklahoma and the United States, both of which prohibit the taking of property without due process of law.

¶3 We think the first contention of plaintiff in error is well taken. In the case of Pabst Brewing Co. v. Burns, as county clerk, the record before us affirmatively shows that the identical questions attempted to be litigated in the case at bar were raised and litigated therein. To be sure, the town of Hennessey was not a nominal party to that suit, yet it will not be denied that it was the real party in interest, and was bound by the judgment entered in that case. On the pretense of correcting the errors made in the first attempt, the town makes this second attempt, and claims, as authority therefor, the provisions of section 860, Comp. Laws 1909, which does provide that, "in case any error or irregularity should occur in levying or collecting any such tax, proceedings may be taken anew so as to obviate any such error or irregularity." But the record fails to disclose any error or irregularity in the levying or collecting of the tax which has been corrected. The last proceeding changes nothing but the amount charged against the lots due to added subsequent costs. The dimensions of the sidewalk was one of the questions litigated in the injunction case. The same question was presented in this case. This is the only error attempted to be corrected by the subsequent proceedings. This was not an attempt to correct the levying or collecting of the assessment. Defendant in error seems to think that it could correct the proceedings in the assessment, and escape the bar of the former judgment. But an examination of the record shows irregularities and defects, both in the proceedings and in the actual construction of the sidewalk, that are incapable of correction. The defect in construction was such that no act or new proceedings could rectify the error. It was a wholly different character of walk than that required by the ordinance. At any rate, these questions were all litigated in the former case, which decided adversely to the claims of the defendant in error, and whether right or wrong cannot be inquired into now, inasmuch as said judgment was never questioned by way of appeal or otherwise.

"The whole philosophy of the doctrine of res adjudicata is summed up in the simple statement that a matter once decided is finally decided, and all the learning that has been bestowed, and all the rules that have been laid down, have

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