Petitioners Brief — Reed v. Allen

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- SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1931 ~

PT ' :

‘“KEZIAH REED, GEORGIANA’ R. SIMPSON, LIL-

LIAN: M. H. REDDING, Iwnrant, sy Her Next

_ Frmnp, LEWIS H.. REDDING; MARGARET M.

REDDING, Inrant, By Her Next Frienp, LEWIS H.'

REDDING, ET AL., PETITIONERS,

7 °

! vs.’

‘ “LORENZO ALLEN. a

_. , BRIEF FOR THE PETITIONERS. _ ;

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_ J. WILMER LATIMER,

Guardian ad Litem for. Infant .

/ |. Petitioners, in Propria Persona,

{ | WALTER C, CLEPHANE,

| GILBERT L. HALL, -

‘Counsel for Adult Pesliionore.

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INDEX, '

Sussect. INDEX. r

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TN se seedshenkehtaxddcandenned oa fut 4b0o6+éb0 cgnews 2

I NIN awd. ocnd'n.s 049. dab enonueec in one dncs er 2

Statute involved.......... OVS cvecceeensbenecoccvesceseesenes 2 ;

, Statement of the case.......0.....cceecceeesces vcbsccccccece 3 g

Grounds of decision below............. jeacusuvasdrecdcuentas 5 .

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Copeinsion SSRRGHEEED CORES AUDOD HONE OO Ro ebsed dé seb betes ndnknce 20

Cases CITED.

Baldwin vs. Iowa State Traveling Men’s Asso., 283 U. S. 522.. 9

Barrows vs. Kindred, 4 Wall.'399.............0ceccceceees, Pe 6

Buck vs. Colbath, 3 Wall. 334...........cceccecee jesseken a 17 :

‘Chicago, R. I. & P. R. Co. vs. Schendel, — 2 | 12

Cromwell vs. County of Sac, 94 U. 8. 351.................. «.

Elliott vs, Lessee of Peirsol, 1 Pet. 328...................6... 12.

Fayerweather vs. Ritch, 195 U. 8. 276.....:.........65...... 8°

Hart Steel Co.’ vs. Railroad Supply Co., 244 U. S. 204.......... 8 ¢

Johnson Co. vs. Wharton, 152 Us 8. 252..........ccccccccccce fe:

Sou. P. R. R. Co. vs. U. S., 168 U. 8. 1....... Perr rn ee eee ‘

State of Oklahoma vs. State of Texas, 256 U. 8..70............ 10, 11

U. S. vs. Moser, 266 U. S. 236..... We ROOM NSO A'S bisib'e eo nie hwo las en 12

‘Watson vs, Jones, 18 Wall. 679.............. a seanianee Preee * 35

Wilson’s Executor ys. Deen, 121 U. a 11

STATUTES CITED, .

Judicial Code, Section 240(a), as amended | February 13, 1925.. 2

D. C. Code, Section 984........ccccwvccccccceccce eer rere re 3

D, ©; Code, Section 1002........cccccccesccccccceceseccces, ; 6

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SUPREME COURT OF THE UNITED STATES, :

OCTOBER TERM, 193i.

7 No.: 600

KEZIAH REED, GEORGIANA R. SIMPSON, LIL-

LIAN M. H.+REDDING, Inrant, By Hen Nexr |

FRienp, LEWIS H. REDDING; MARGARET M.

‘REDDING, Inrant, By Her Next Prienp, LEWIS H.

REDDING, er au., Perrriongns,

vs.

LORENZO ALLEN.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE

DISTRICT OF COLUMBIA. a

BRIEF FOR THE PETITIONERS.

Cpinion Below.

The opinion of the Co onrt of Appeals will be found

at pages 22 to 25 of the’record. Thus far it has been

reported only in 60 Wash. Law Rep., at page 36.

1l

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Jurisdiction. - \

“The Sineaii of the Court of Appeals was .gntered

December 7, 1931 (R. 25). The petition for “writ of .

_ certiorari was filed December 29, 1931, and was granted

January 25, 1932 (R. 26). The jurisdiction of this

Court rests upon Section 240 (a) of the Judicial Code

as amended by the Act of February 13, 1925.

The grounds upon whieh this Court’s jurisdiction

was invoked (Petition,.p. 5) are:

1, That the Court of Appeals has decided errone-

ously a question of great and general importance.

2. That said decision, if permitted to stand as‘a

precedent, will unsettle and tend to destroy long-estab-

, lished law with respect to the conclusiveness of judg-

ments.

3. That the Court of Appeals has not given effect to,

’ but -has wholly ignored, applicable decisions of fhis

Court relating td the doctrine of res judicata,

Question Presented. °

. Whether a.final judgment in ejectment constitutes a

bar, under the statute im force in the District of Co-

lumbia, to the prosecution of. a later ‘action of eject-

ment between the same parties involving the same

issue. . :

Statute Involved.

The statute involved is Sec. 1002 of the Code of Law

2

. of the District of Columbia, quoted at page 6, infra.

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_/ Statement of the Case.

“In an Aetion of ejectmient, brought by’ respondent -

against petitioners,* the Supreme Court, of the District -

_gave judgment against respondent (R. 20) on the:

ground that the action was barred by a previous judg- .

ment in ejectment, between the same parties, in favor

of the petitioners (R. 18). The Court of Appeals, how- :

ever, Keld that the previous judgment was not a bar

_ (R. 22-25), and accordingly réversed the“decision (R. |

25). ‘It is this judgment of.the Court of ‘Appeals which

is now to be reviewed. From fhe previous judgment, |

"in ejectment no appeal was taken (R. 6°23); and peti-

tioners were put into possession of the land there (and —

here) involved undef the appropriate: writ (R. 15);

They have remained ‘in possession ever singe (R. 6,7).

The facts of the instant case are presénted by the

. pleadings. To the declaration (R. 1, 2) the defendants

(petitioners here) pleaded the former p®eceedings’ and

judgment (R. 5, 6). The plaintiff (respondent here) °°

replied certain-facts (R. 8-16), and the defendants de-

murred (R. 17, 18). The demurrer having beertshs-

* tained in the trial court (R. 18, 19), the Waigifi elected

to stand 6n_ his répHeation (R. 20).

The facts set up in the replication (R. 8-16) are, in:

substance : that, before the first, action in ejectment, a

* Suit was started against petitioners’tenant, but

petitioners’ were promptly substituted as defendants, .

ti, undereSec, 984, D. C. Code (R. 4, 5). e

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Sill of interpleader had been filed by one Walker as.

plaintiff against the petiffoners, on the one hand, and |

the respondent, onthe other, as defendants making.

adverse claims,to certain moneys in his hands, being

rents out of the land later involved in the two eject-

‘ment suits (R. 12); that the defend¥nts were required -

. to interplead (R. 9) and each party claimed the rent.

* moneys as owner of the land under a certain will men-

tioned below ; that in the trial court the petitioners had

a decree. (R. 9, 10), but. in the Court of Appeals the |

‘ respondent was held entitled to said-mo eys as heir at

law (R. 15), and a mandate was sent hich accordingly |.

(R. 15);-that the first action of-ejectment was. begun

{R. 5) and ‘concluded (R: 6) after the decree in the ~

lower court (R. 10) and before the cai in the

upper court (R. 15):

The will above referred to was that of one Silas |

Holmes who died pfloy. to 1898 (R. 12), seized and .

‘possessed of the real estate in question. ‘He devised it :.

to ‘certain life tenants ‘(R. 11, 12), and, following the

‘death of .the last of these, the controversies arose be: :

tween petitioners ‘and ‘respondent which resulted in.»

the suits above described ‘(R. 12-16). © Che. |

Although it is believed that the above statement is

sufficient to present the only question of law mvolved, < .*,

yet in: the interest of perfect clearness the essential —

evénts in the three suits are here mentioned i in chrono-

* - logical order: ~ ee AE, *

J uly, 1925.—Decree in trial aint in petitioners’ |

* sfavorin interpleader suit involving rents; ; appeal —

and ee - 9, 10). ee ih ce

5

June, 196.—Ejectment for possession of real estate

instituted by petitioners against respondent.(R. 5).

| August, 1926.—Judgment for, petitioners “in eject-

ment action. 8 appeal taken (B.. 6, 23).

Angust, 1926.—Possession of real estate delivered ts.

petitioners under writ of possession in ejectment suit

(R. 15). : | °

January, 1927.—Decision of Court of Appeals re-

versing decree i in interpleader suit (R. 15).

May, 1927.—Decree’ upon mandate of Court of A

peals in interpleader’ sft (R. 15, 16).

December, 1927.—Ejectment (second action) : for

_ possession of same réa] estate, instituted by respondent:

(R. th). . F 4 a. s

April, 1930.—J udgment for stilton in second’

ejectinent suit; appeal noted and perfected (R. 20).

‘Decembdr, 1931.—Decision of Court of Appeals re-

asi indgment*in second ejectment suit (R. 22- 25).

4. Grounds of Appellate Court’s Decision.

Upen a careful reading of the: opinion of. the Court

of Appeals (R-'22-25) it is difficult to say what, ex-

‘actly, is the real ground of the’ decision, ‘but it. would

appear to be; primarily, that the ialguaent of that, court

in theinterpleader suit constituted a new title to the

. land in the respondent, and, secondarily, that the judg-

‘ -ment in the first gjéctment “om, although not. apn-. .

' pealed from, cut be a be .a‘ final judgment until the

_ Court of Appeals had feast pon the same question

of law in the collateral interpleader suit. An analysis

of the opinion will be found at pages 13 to 17, infra..

é

_ Specification of Error.

~ The Court of haat erred in holding that the judg-

ment in petitioners’ favor in the first ejectment:suit .

did not constitute a bar to the prosecution by respond- 3

ent of ‘the second ejectment suit.

ARGUMEN T.

The common law doctrine which pereiittel successive’

ejectment’ actions between the: same parties involving

the same issue has been abrogated by the following pro-

vision of the D. C. Code:

“‘Any final judgment rendered i in an action of

- ejectment shall be conclusive as ‘to the: title

thereby established as between the parties to

the action and all persons claiming under them

since the commencement .of the action’’ (See:

tion 1002). :

Of . similar stutute this Court said, in Barrows ‘VY,

Kindred, 4 Wall. 399 :

“When the’ ‘Legislature of any. State has seen

fit to divest the action of ejectment of its ancient

characteristics, and to place it upon the same

footing with other actions, we have not failed to’

give full effect to fhe legislative intent by main-

taining, the conclusiveness ofthe judgment, as

- in other cases.’ (p. 403) .

In the “present gase the Court of Appeals has ih

clared a final judgment in ejectment to be of no effect,

' notwithstanding the plain terms of the above statute

and the applicable: decisions of this Coust hereinafter.

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cited. The reasons given in the appellate court’s

opinion. (R, 22-25) are presently to be” adverted to

(infra. pp. 13 to 17). }

Whenever this Court has had occasion to er of

the ‘estoppel by judgment, it has spoken in no uncertain

terms. Brief quotations from a ow illustrative cases

_ follow:

Johnson Go. v. Wharton, 152 U: S. 252:

‘‘The object in establishing judicial ieee |

Is that controversies between parties, which may

be the subject of litigation, shall be finally de-

terminéd. The peace and order of society de-

mand that matters distinctly put in issue .and ©

determined by a court of competent jurisdiction

as to parties and subject-matter,.shall not be.

“ retried between the same parties in any subse-

quent suit in any court. The exceptions to this

.rule that are recognized in cases of judgments

obtained by fraud or collusion have no applica-

tion to the present sat” (op. Zork. 7 CCF

“The inquiry. as to the conclusiveness of a

‘judgment in a prior suit: between the same

parties can only be whether the court rendering

such judgment—whatever the nature of the

' questign decided, or the value of the:matter in

dispute—had jurisdiction of the parties and the .

_ stibject-matter, and whether the question, sought

to be raised in the subsequent suit, was covered

by the pleadings and actually determined in the

former suit.’ (p. 261)

Southern Pacific R. R. Co. v. U. S., 168 U.S. 1:

“The general principle announced in numer-

ous cases ‘is that a right, question or fact dis-

ae car — :

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8

'tinetly put in issue and directly determined by

\a court of competent jurisdiction, as a ground

of recovery, cannot be disputed in a subsequent

suit between the same parties or their privies;

(p.48) * * * This general rule is demanded by

the very object for which civil courts have been

established, which is to secure the peace and re-

pose of society by the settlement of matters

capable of judicial determination. Its enforce-

_ ment is essential to the maintenance of social

_ order; for, the aid of judicial tribunals would

not be invoked for the vindication of rights of

-person and property, if, as.between parties and

their privies, conclusiveness did not attend the

judgments of such tribunals in respect of all

- matters properly put in issue and actually de-

. termined by them.’’ (p. 49)

Fa ‘aii, Ritch, 195 U.S. 276:

‘‘Private right and publit welfare unitesin

demanding that a question once adjudicated by

a court of competent jurisdiction shall, except in

direct proceedings to review, be considered as

finally settled and conclusive upon the parties. =

“Tp. 299) (Italics supplied.)

Hart Steel Co. v. Railroad Supply Co., 244 U. S294:

‘‘This doctrine of res judicata is not a niere

matter of practice or procedure inherited from

.a more technical time than‘ours. It-is a rule of

fundamental and. substantial justicé, ‘of public

policy and of private peaée,’ which should be cor-

- dially regarded and enforced by the courts to

the end that rights once established by the final

judgment of acourt of competent. jurisdiction ~

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shall be recognized by those who are bound ~ it

in every way, whérever the judgment is ‘entitled.

to respect.’’ (p. _ .

A very recent expression of this Court upon the sub:

| ject-is in Baldwin v. Iowa State Traveling Men’s Asso- |

ciation, 283 U. S. 522, where the facts-were that a cor-

__ poratien, sued tai the 7 United States District Court of

Missouri, had entered a special appearance and moved

to dhinion on the ground of the lack of jurisdiction of -

- that court over the person of the defendant. Its motion

was overruled and, upon failure to plead, judgment

was entered against it. The corporation sought no

review of 4 jadement Later, suit upon the judgment

was brougl in the United States. District Court of

Iowa, and the corporation there pleaded the invalidity

of the judgment on the same ground advanced in the

former sigj—lack of jurisdiction of the District Court .

' _ of Missouri over the person of the defendant. This

Court held that the corporation was estopped by the

former judgment, which became final by its failure to

move to set it aside or to sue out a writ of error, and

said: we .

. ‘It elected to follow neither of those courses,

but, after having been defeated upon full hear-

ing in its contention as to jurisdiction, it took

no further steps, and the judgment i in question «—

resulted. °

‘*Public policy dictates that there be an end

of litigation; that those who-have contested an

issue shall be bound by the result of the contest,

and that matters once tried shall be considered »

forever settled as between the parties. We see °

no reason why this doctrine should not apply in

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“ every case where one voluntarily appears, pre-

_* sents his case and. is fully heard, and why he

should ‘not, in the absence of fraud, be there-

after concluded by the judgment of the tribunal

a7 which he has submitted his cause.” (pp. 525,

526) |

The appellate court’s interpretation of the Silas

Holmes will, in the interpleader suit (R. 15), was not

handed down for many months after the first ejectment

judgment had been entered and petitioners put in pos-

session (R. 1g). The present decision of the Court of

Appeals is that, notwithstanding the acquiescence of re-

- spondent in the judgment in the first ejectment suit, he

is nevertheless not bound by it, but may maintain this

second ‘ejectment suit because of that intervening rul-

ing of the Court of Appeals in the interpleader suit.

In‘other words, when (through the appellate court’s

subsequent ruling in a wholly collateral suit) it appears

that a final judgment in ejeetment, unappealed from

and acquiesced in, had been erroneous, the losing party

“may again litigate the same issue with the same parties

‘in a secotd ejectment action.

Tested by this later ‘interpretation it may be ad-.

-mittéd that the ejectment judgment was erroneous.

But that doesnot at all affect its finality and coriclusive-

ness. As this Court said in State of Oklahoma Vv. - State

‘of pia 256 U.S. ‘70: : ;

“The matter being res judicata, as the result

of the decree in the former suit, it is of no con-

‘sequence whether it was correctly decided or

not.’’ (p. 93)

11

J

It is not necessary to cite decisions of other courts

to the effect that the failure to assert rights in a suit

in which a judgment. is obtained, either through igno-

rance of law or of facts, or through negligence or mis-

conduct of counsel, does not affect the estoppel, and

that, so long as the judgment remains unappealed from

~ and in full force, the fact that it may have been erro-

neous doés not detract from its effect ag a bar to fur- -

ther suits upon the same cause of action.

The opinion in Oklahoma v. Texas, supra, and the

following quotations from other cases in this Court

make the above principles clear. _

In Wilson’s Executor v. Deen, 121 U. S. 525, which

is quite in point on the facts, the Court said:

‘Fraud in procuring the lease, upon which

this ‘action is brought, was the point in issue in

the action in the Marine Court between the same

; parties, and it having been found by the verdict

of the jury against the plaintiff, and judgment

_ having been rendered upon that finding, the fact _

¢ thus established must necessarily defeat any

subsequent action upon the ante instrument be-

tween those parties. The effect of the yudgment

is not at all dependent upon the correctness of

the verdict or finding upon ‘which tt was ren-

dered. It not being set aside by subsequent pro-

ceedings, by appeal or otherwise, tt was equally

‘effective as an estoppel upon the point decided,

Fs hether the decision was right or wrong aii i

(p. 534). (Italics supplied.)

In Cromwell v.County of Sac, 94 U: S. 351, fre-

quently cited in later decisions of this Court, the opin-

ion, after stating’ the rule that.a judgment rendered

’ .

a GREET AON R Aas BIO NTA RENT ON RO ar I MIO EEEY SO ZEEE PLETE IP LENT

12

upon the merits constitutes an absolute bar toa subse-

‘quent action, continues :

* ‘It is a finality as to the claim or demand in .

controversy, concluding parties and those in.

privity with them, nat only as to every matter

which was offered and received to sustain or de-

~ feat the claim or demand, but as to any other ad-

missible matter which might have been offered

- for that purposé. Thus, for example, a judgment

rendered upon a promissory note is conclusive as

to the validity of the instrument and of the

~. ’ amount due upon it, although it be subsequently

alleged that perfect ‘defenses actually existed, of —

which no proof. was offered, such: as forgery,

‘want of consideration, or payment. If, such de-

fensés were not presented in the action, and es-

tablished by competent evidence, the subsequent.

_ allegation of their existence is of no legal conse-

quences The judgment is as conclusive, so far as

future proceedings. at law are concerned, as

though the defenses never existed’’ (pp. 252,

253). (Italics supplied.)

™ U... 8. v. Moser, 266 U. S. 236, the Court said:

“But a fact, question or right distinctly ad-

: judged i in. the original action cannot be disputed

in a subsequent action, even though the deter-

mination was reached upon an erroneous view or

by an erroneous application of the law’ (p. 242).

(Italics the Court?s.)

y

To same effect: §\ \ ¢ ,

Elliott v. Lessee of Peirsol, 1 Pet. 328, Sas a9

Chicago, R: 1. & P. R. Co. v. Schendel, S.

611, at p. 617. a

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So important is the maintenance of the doctrine of

res judicata that this Court has declared that. it must -

be enforced even when no-review of the judgment by

appeal was available, because of the small amount in- —

- volved (Johnson Co. v. Wharton, 152 U. S. 252).

' Brief references will be made now to the grounds ©

stated in the opinion of the Court of “err for its

ruling in the present case.

1, Stringely, the appellate court treats the appeal

from the decree in the collateral (interpleader) suit

as if it had been’an appeal from the judgment in the

first action of ejectment, and bases its conclusion upon —

this supposed fact. It alia i in its opinion, after quot-

ing the Code se@tion in question (supra, p. 6): .

- It will be observed that this relates to final

judgments. A judgment appealed from is not a

final judgment. It is merely an adjudication of

the inferior court, the finality of which depends

upon the action of the superior court”’ (R. 24). |

*. (Italics ours.)

Any reader of the opinion (R. 22-25) would almost

certainly infer from this that there had been an ap-

peal from the first ejectment judgment. But it has

already been shown by the record that there was no

appeal taken (R. 6, 23).

2. The appellate court falls into the further error

of treating the decree in the interpleader suit as a

decree vesting title to the real estate. :

That the interpleader decree did not create or ‘vest

title to the real estate is obvious. The only possible

14

‘authority of the court in the interpleader suit was to

determine who was entitled to the money in Walker’s

hands. This involved the interpretation of Silas.

_ . Holmes’ will for the purpose-of ascertaining in whom

was the title in remainder, for such remainderman was -

‘clearly entitled to rent-money collected by Walker’after —

-* the life tenant’s death. The trial court’s construction

| of the will gave the v3 oney to petitioners as devisees .

under the will (R. 9,10). The appellate court’s con-

struction gave it to respondent Aller «s heir-at-law’ (R. -

15), In either view the title to the las must have vested

‘at the testator’ s death (which occurréd about 30 years °

before—Rp 12) or as sbon after his-death: as the claim-

ants came’into being. Therefore the equity court could

nat have vested title to the land by its decree in the

interpleader syit, and the fact is that neither the first

_ decree (R. 9, 10) nor the decree upon mandate * 15, . .

16) attempted to do.so. ‘

It is thus made evident ‘that the appellate court: w as

entirely in error in declaring the fact tobe that

“The judgment in the first ejectment proceed-

. ing was dependent entirely upon the title ac-

utved through the decree of the Supreme Vourt

mat the: District of Columbia”? (R. 24). (Ifalies .

ours, )

cs 3. The- third fundamental error of the appellate

'} court is closely related to the second. } It j is that the

appellate ‘court predicated its decision. upon the un:

justified premise ‘tliat petitioners had based their eject-

‘ment action upon the trial court’s decree i in the inter-

pleader suit. The opirtion, in stating the case, says .

'(R. 23) that petitioners-‘‘instituted an action in eject-

. Ment against the appellant wholly based on the decree

then on appeal.’’ (Italics ours,)° Throughout the

opinion are other frequent. references to the same sup- -

_. posed fact, and it is plain, from the court’s language‘

that it: regarded such supposed fact, as a controlling

oo N e : hae at iy

But the record shows that Petitioners’ ejectment ac-

tion was based, ay of course it must have been, upon

_ the title which the had | Tong asfiWed as devisees under

the Silas Holmes will (R- ‘8, 9). Manifestly the judg-

- ment therein could not have been based, nor in any way

dependent, upon a deéree which vested no title to the

_ veal estate nm them. Respondent’s replication in the

_ present action (upon which he elected .to stand after —

demurrer was sustained) ‘avers that in the former eject-

ment action, petitioners’ ‘as their source of titlé and

right to possession relied solely’? upen Silas Holmes’

‘will, and upon the trial court’s decree in the inter-—

pleader suit (R. 8, 9). tae is the only statement in

the record upon thissubjéct, and it shows that the pres-

". ent petitioners there asserted and relied ‘upon a title

derived from the wul and very properly availed them-

‘ selves of the interpretation given the same will by a

*, justice of the same court in a collateral proceeding in |.

which the will had also been involved. But even if peti-:

_ tioners in that action had erroneously relied upon the

trial court’s decree in the collateral suit, as their source

of title, respondent could not by a secdnd action in

ejectment attack the./erroneous an from which

he omitted to oppes.

A.

*

- 4 The a eourt further, in its opinion, says. |

that: ri ail Aare ae

. °

“The first ejectment. oil was 3 merely: im aid

of the — decree”’ (R. 24, 25): - (Italies ours.) @.

and. aw * 4% Had a - i

“When: that decree was ; reversed,” ‘vacated,

set aside, and for nothing held,’ the jlidgnots,”

_ for possession shared the fate of the decree upon

_» Which relianc® was — for title” (R. Be).

“Iti is impossible to find any justification either in the

- record or in-the law for declaring, that.{his common

law getien of ejectmerit was or could ‘hav. been i in aid

of the decree for the payment of ey in, the inter- -

» pleader suit.

_ * 5, The appellate court's Citi concludes thus:

‘‘It was within the power of the equity court

upon the mandate. ofthis. court, to have ordered

restitution of posséssion in its ‘decree. Possess-

_. -ing this power, it would-be trifling with justice

~*~ to hol& that.the court was without power to

“gre restitution in ejectment’’ - 25). .

But, it may be —— what possible — or jur is-

diction liad the, equity court, in the collateral: inter-

pleader suit over money, to- enter any. order or decree

which could disturb the final. idgment, ‘entered long .

before by the law court in ejectment, or the possession

‘of the real estate which had been secured by that judg-

ment? Of course, - upon the reversal of the equity.

| decree, the trial vourt could and would have required

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#he prevailing parties below to surrender the money, |

which -alone was the: subject of that suit, had such

‘money been paid to them pending the appeal. - ms

The . Court of. Appeals in its opinion cites, as

- authorities, for its conclusion, ‘the. following ue

‘cases only: Golde Clothes Shop v. Loews Buffalo -

. Theater, 236 N.Y. 465, 470; Ure v. Ure, 223 Ill.

454; Dodson v: Butler, 101 Ark. 416, 420;'U. S. (mean-

* ing Bank of U.S.) v. Bank of Washington, 6 Pet. 8, 17.

‘Counsel deem it urinecessary to protract this brief by

-referring to the facts and conclusions i in! ‘those cases,

because’ a cusory examination will disclose that none

~ of hem is at all i in Soint upon the facts or the sy of the

present case. ee

As paicates by the foregoin's quotations from the

opinign of the Court of Appgals, it wholly ignored the ~

- distinct nature of the remedies invoked. in the eject- .

ment action and the interpleader proceeding, -respéc- —

_ tively, and the exclusive character ‘of the jurisdiction

in sneh-cases. Because ini both it happened that the

thterpretation of ‘the same will wag: involved, the ap-

pellate court fell into the fundamental error of treat- .

-. ing the judgment in thé one cdse as dependent upon

the decree in the other. The following apt language

‘of this Court in Buck v. Colbath, 3 Wall. 334, which

N

was directly called to -the appellate court’s attention .

In petitioners’ brief ies should kave. prevented my

such: — : ety ar

“Tt j is not tine that a eouré. having edtained

jurisdiction of a subject matter of a suit, and

' .of. parties before-it, thereby excludes all other

courts from the right to adjudicate upon other

fii 8

-..

matters having a very close connection with

those before the firsti‘court, and, in some ‘in-

stances, ig the decision of the same ques- .

tions exactly,

‘Ine pining into the exclusive character of ~

the jurisdiction of such cases, we must have re-

gard to the nature of the remedies, the character

‘" ’° of the relief sought, arid the identity of the

parties in the different suits: &

“For example, a party having notes sevured:

- by a mortgage on real estate, may, unless re-

strained by statute, sue in‘a court of chancery

to foreclose his mortgage, and in a court of law .

to recover a judgment on his notes, and in an: «

other court of law in an action of ejectment to -

get possession of the land. Here in,all the suits

the only question at issue may be the existence’

. of the debt mentioned in .the notes. and mort-

gage; but as the relief sought is different, and

the mode of proceéding is different, the juris-

diction of neither court is affected by the pro-

. ceeding in the other’’: (pp. 345, 346). (Italics °

supplied. )

$

See also Wafson v. Jones, 13 Wall. 679, at page 716. +

The only ground upon which respondent sen to

avoid the bar of the fokmer judgment was that he ad

i acquired a new title since the first ejéctment judgment.

by virtue of the-decree upon mandate of the appellate

owrt in the interpleader suit. (See Op. Ct,. of Ap.,

R. 23.) The learned trial justice in his memorandum ~

opinion. rejected this contention, saying: 7

“‘Tdo not think that the plaintiff sets up any =| J,

' title in the present suit acquired since the former , |

s@it. * * * He failed to appeal fyom the former /

—

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_ judgment and cannot now set up any title which

-he had at that time’’ (R. 18).

| With that conclusion the popelinie court disagreed,

‘holding that the decree upon its mandate in the inter-

> pleader suit over the rent money constituted a new title

to the real estate in Allen. It has’already been shown °

_ that-such could not have been the effect.of said decree,

‘-and reference to its terms (R. 15, 16) will show clearly |

that it did not eiitidl to vest or create title to the land -

in anyone. es, .

To further test the main question here ‘aeuived, sup-

pose Petitioners’ ejectinent action had been instituted

after (instead of long before) the ruling by the Court

of Appeals in the interpleader suit, and that: the trial ©

court had erroneously given jud ent. for petitioners

notwithstanding that ruling, what would have been

respondent’s remedy? Obviously his. only remedy -

would have been an appeal from|that judgment. - He

could not acquiesce therein and latér on institute a sec-

ond ejectment suit because of the error i in entering the

- prior judgment.

_ The case made by the record comes “simply to ‘hie:

Respondent had his day in cuurt in the first ejectment

‘action. He had a plain legal remedy by appeal from —

the adverse final judgment therein and omitted to avail

himself of it. By the present decision the Court of Ap-

peals has given him a remedy which is opposed to set-

tled principles repeatedly declared by this Court, as

well as.té the terms of an unambiguous statute.

2 we are not mistaken in our view that the decision ~

) is wrong, that it contradicts the plainest decisions of

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\ ‘this Court, and that it tends to weaken if not to destroy ~

- one of the fundamentals of the law, then the fact that—-

the decision was by a unanimous court only makes the

situation the more serious.

- Conclusion.

It is respectfully submitted that the decision and

judgment of the Court of Appeals should be reversed.

J. WILMER LATIMER,

Guardian ad Liten for Infant

Petitioners, in Propria Persona.

WALTER C. CLEPHANE,

GILBERT L.: HALL,

Counsel for Adult Pelitigters.

(1679)