The opinion
Supplemental Opinion on Rehearing.
SWINDALL, J.
On rehearing it is seriously contended by plaintiff in error that the opinion in this case conflicts with the opinion of the court in the case of Clay v. Brown, 161 Okla. 221 , 17 p. (2d) 379. We cannot agree with that contention. In the Brown Caso the evidence is not set out in the opinion as fully as in this case, but a careful examination of the record, briefs, and petition for rehearing discloses much evidence relative to the property involved In this action not being the homestead of Charles W. Clay that was not produced in the Brown Case. The First National Bank of Ardmore and E. A. Hooven were not parties to that case. Former judgment cannot be made basis of plea of res judicata unless; suit was between parties or their privies. Airy v. Thompson, 154 Okla. 1 , 6 P. (2d) 445 ; Pepin v. W. R. Thompson
&
Sons Lbr. Co., 150 Okla. 295 , 1 P. (2d) 714 , see discussion at page 716 in P. (2d). Counsel for plaintiff in error seem (o recognize the rule, announced in the cited cases, for at page 97 of the record we find the following:
“By the Court: I was wondering if there was not some way to hold this up until the Supreme Court passes on this other case. (The Brown Case.) By Mr. Brett (of counsel for Chas. W. Clay) : We want this case tried, as this ease is entirely different, and we have some evidence that was not produced in the other case, and we want this one tried, and whichever way it goes we want a judgment rendered. By the Court: I will try it. however. I may use my own pleasure about when I render judgment. By Mr. Brett (of counsel for Chas. W. Clay) : That is all right.”
The record shows that Charles W. Clay signed the appearance bond of S. F. Haynie. The justification is not signed by Clay, but he admits he wrote his own name in the justification, and wrote in the description of the property involved in this action (C.-M. 316). Ho signed three appearance bonds for Raymond Garrett. The first criminal appearance bond of Raymond Garrett was not offered in evidence in the Brown Case. It shows that in the justification Clay listed the land here involved as not his homestead (C.-M. 266). The same is true as to the second and third appearance bonds of Garrett. We could call attention to much more evidence in this case that is not in the Bi-own Case. The record convinces us that the judgment is not against the clear weight of the evidence, but, on the contrary, is sustained by the weight of the evidence. The qualifications on the appearance bonds show that it was not the intention of Clay in good faith to occupy the land as a homestead. As to these bonds, Mr. Clay, “Thine own mouth condemneth thee, and not I, Yea, thine own lips testify against thee.” — Job 35:6.
Petition for rehearing denied.
RILEY, C. J., CULLISON, Y. C. J., and ANDREWS, McNEILL, OSBORN. BAY-LESS. BUSBY, and WELCH, JJ., concur.