Reply Brief of the Respondent — Reed v. Allen

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IN THE ,

Supreme Court of ( -the United

OCTOBER TERM, 1931

No. 600 |

KEZIAH REED, GEORGIANA R. SIMPSON, LILLIAN M.

H. REDDING, Infant, By Her Next Friend,

LEWIS H. REDDING; MARGARET M. REDDING,

Infant, By Her Nest. , Friend, Lewis H. Rep-

DING, et al. , Petitioners,

VS.

LORENZO ALLEN. Mie

ANSWER OF THE RESPONDENT LORENZO ALLEN TO

THE PETITION OF KEZIAH REED AND OTHERS

FOR WRIT OF CERTIORARI! TO THE

COURT OF APPEALS OF .THE

DISTRICT OF COLUMBIA

’ ALyIN L. NEWMYER,

Counsel for Respondent.

of Counsel for Respondent.

V GEORGE C. GERTMAN, e :

FP tb tad

Bi ILE COPY | Office ‘Sup-sine Cou

JAN 151

INDEX

| : . Pace

Barrows v. Kindred, 4 Wall. 399 10

Bird v. Cross 123 Tenn. 419 10

Breon v. Robrecht, 118 Cal. 469 | 10

Foster v. Evans, 51 Mo. 39...... | -10.

Gore v. Gore, 101 Tenn. 620, 624m 10

Hawley v. Simons 102 Ill. 115, 120 ——

Merryman v. Bourne, 9 Wall. 592, ee 10

- ‘Northwestern Fuel Co. v. Brock, 139 U. S. 216.. 3

Prewitt v. Wilborn, 184 Ky. 638 Sa 10.

Thrift v. Delaney 69 Cal88.. V. 10

Watson v. Jones, 80 U. S, 679... 10

Freeman on Judgments, Sec. 712, p. 1501; 5

Sec. 714, p. 1507. . oommes 6°

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off,

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. 7 A : No. 600° 7 : — i

' Kezian Kee, Grorciana R. Rieen, LILLIAN M,

Ge. | REDDING, Infant, By Her Next Friend,

- Lewis H. REDDING; “MARGARET M.. REDDING,

_ Infant, By Her Next Friend, Lewis H. RED- |

DING, et al., Petitioners, |

8°.

~~ LORENZO ALLEN. - a

Anewsn.c OF THE RESPONDENT sine ‘hexen TO

_ THE PETITION OF..KEZiAH REED AND OTHERS |.

FOR WRIT OF CERTIORARI TO THE . ~

. CouRT’ OF APPEALS OF THE — :

~)\ DISTRICT OF COLUMBIA

¢°

‘L This-is not a matter- ‘of any great of general tm-.

, portance but it is. simply an ordinary ejocuneat suit

~ and _m only the parties to it. rey

2. On July 24, 1925, in an equity suit ame

the property here involved—petitioners and re-

spondent being parties—the Court adjudged and

decreed— : | ) _.-

_ * “That the true interpretation of the aforesaid

Will of the said Silas Holmes, deceased, is that

upon the death of said testator’s daughter Vir-

ginia Allen, without 'eaving child her surviv-

-. ‘ing, the real estate described in the bill of com-—

-plaint, of which said testator died. seized, and

* ° possessed, is devised to Walter Holmes, the .

-- . adopted son of said Silas Holmes, and to the

brother and sisters of the said Silas: Holmes, or ,

-_. * to. their heirs, if deceased, in equal shares, share —

' and share alike, per stirpes; and it appearing

ai to the Court that the fund on-deposit in the |

" Registry of the Court as aforesaid represents

‘the rents which have ‘accrued: from said real

‘ estate since the death of the aforesaid Virginia

Allen, it is, Adjudged, ordered and decreed that -

“the said rents be divided among the aforesaid

‘Walter Holmes andthe other defendants hereto,

> who are brothers and! sisters of the said Silas

‘» Holmes, deceased, or heirs at law of deceased

drothers angi sisters of the said Silas Holmes, in

equal shares, per stirpes.” (R. 10, 11.) ye

The respondent at that time was in possession of -

the property. and he also ‘claimed to own-it. He

therefore’ perfected his appeal from the decree by.“

giving a cost bond. ieee :

_ Armed with the said decr§@ adjudging them tobe

the owners of the property, and being unwilling to _

await the disposition of the appeal by the Court of

Appeals, the petitiéners in June, 1926, brought. an

Z:? ;

: ’

-- dent whatever

action in ejectment against the eaiiaiiead toeje ect |

him from the possession of the property:

They based their action of ejectment and their :

right to possession upon the said decree and.the items

of Silas Holmes’ Will which it construed (R. 9).

Of cottrse they had no other source of title.

By their ejectment action the petitioners asked the

. Courf'to execute the decree of July 24, 1925, which .

adjudged them to be the owners, by putting them i in

possession of the property, which it did. The law, —

of course, raising the obligation on the -petitioners,

of thé decree, to return to the respon- ©

might lose through the execution

_of the decree by jejectment or otherwise.

NorTH ESTERN FUEL Co. V. Brock, *

~ ".139 U.S. 216: ’

‘Phieresfaer, upon ‘the hearing of the respondent's |

appeal from, the said decrée, the Court of Appeals

decided‘ that the respondent alone was the owner of

the property and:reversed the decree (R. 16).

‘Thereupon the,equity court on May 27, 1927, made

fly 2, by which ‘it vacated its former decree of -

ly 24, 1925, and adjudged the respondent to be the

ner of fie property pursuant -to the mandate of

_ the Court of Appeals (R.17). |

-Armed with the said decree-of May 27, 1927, aad

the decision of the Court of Appeals adjudging him

to be the owner of the property and by reason thereof

~ entitled to its possession, respondent filed the present -

-ejectment suit to oust the petitioners (R. 1-3). The

decree of May 27, 192%; any a source of title.

_ Instead of the petitioners returning to respondent,

as required by the law, the possession of the property

which they gained through the execution in ejectment

of the reversed decree of July 24, 1925, the peti- -

tioners interposed, as a plea in bar, Section 1002. of

- D. C. Code (R. 5-7).

. Therefore the question before the Court of Ap- |

| ou for decision was whether Section 1002, in view

of .the facts and circumstances, foreclosed the re-

spondent from prosecuting. his ie ——

suit.

To have decided that Section 1002 was a barrier to

respondent’s suit would have been-unconscionable as

- it ‘would. perniit .petitioners.to retain possession of ©

property they do not own, nevér owned and were

never rightfully entitled to possession of according

- to the decree of May 27, 1927.

Petitioners, however, do not complain. that the de-

-_ cision is unjust (or that it is not consonant with fair

dealing, or even that they are wrongfully deprived

.by it: of any rightfal. possession of the property.

Their complaint is that the decision ignores an ab-

" stract proposition of law. . k sma P. 5, * 7,

. Ber {2]). eis

‘The polar star that guided the Court of Appeals.

i in its disposition of the case, was—

‘ (a) The collapsed foundation (decree of Jaly: ‘24,

~* 4925) supporting the judgmefit pled in bar.

—(b) The ‘egal duty of the petitioners to restore

3, to respondent what he lost through the execution of

the —. “ :

= of

4 sas

2 CFE 06 £0 new

Yes, iio .

‘es

“*

suit was a sequel to and in aid of the decree of July

24, 1925, and was ancillary and accessory thereto and

_ it fell with the reversal of the dectee..

(d) Respondent had no evidence of his title until

May 27, 1927, when the Court adjudged. and de- -

clared him alorie to be the owner of the property—

nifte months after he liad been dispossessed. This

fact alone justified the decision of the Court. Free- .

‘man’ on. Judgments, Sec. 712, p. 1501, says: ° ;

- “Where a right or title comes directly in issue

_ the parties. are bound: to bring forward every

matter or ground which might be urged to es-

‘tablish or defeat it and will be estopped by the

. adjudication from attempting to relitigate the —

Same right or title upon other or different evi-

dence or ground which might have been urged in

the first action.. Even a new evidentiary as

distinguished from a new ultimate fact, does

not change the situation. But from the rule that

an adjudication affects no ‘claims which the

parties had no opportunity to litigate, it results

, that no judgment or decree can prejudice rights’

which had not accrued to either of the parties

at the time. of its’ rendition. A decision that a.

~~ right exists, or that a wrongful act has been com-

_mitted, Jeaves the party at liberty to show at a-

' future time that since the decision was pro- |

nounced the right has expired or the wrong has

_ been abated. And the same is true with respect to «

a decision that no right or cause of action exists; °

tt doesnot bar a sécond action when new fatts:

. have created a right or cause of action. The. fact

that the same subject-matter was involved in the

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* ° .

is ‘

furnishing a new basis for the claims and de:

_ And in Sec. 714,-p. 1507, the same author says:

such an adjudication oy however, be limited ;

x ously not conclusive as to title and oe subse-

The opinion of the Court. of Appeals; writen by |

Mr. Justice Van Orsdel, being impregnable, it is

here incorporated in its entirety :.

_* former action is wholly immaterial ... . Under

ng circumstances will a judgment or decree take

_ estoppel of a judgment extends only to the facts.

‘no longer the same and consequently the former

cated, the judgment is res judicata upon this

- in this . as part of the estate of one Silas

ty)

appellant here is the testator’s. great grandson

‘brothers and sisters and the descendants of

Z _ brothers and sisters.

effect upon rights not.then existing . ... The

as they were at the time the judgment was ren- .

dered, and to the legal rights and relations of the

parties as fixed by the facts so determined; and .

when new facts intervene, before the second suit,

fenses of the parties respectively, the issues are

judgment cannot be pleaded s in bat.” ff

_ “Whenever title is put in issue and adjudi-

issue in any subsequent action, -The effect of |

to the title or right as it then stood. It is obvi-

quently acquired.”

- “This appeal is from a judgment of the i

preme Court of the District of Columbia in an ~

ejectment proceeding. The real estate involved

Holmes, died November 11, 1892. The

and next of kin, while the d@ppellees. are his

“In .1922 litigation drtdnen over dei rents derived

from nd property, which- called for a construc-

tion of the will, On hearing a decree was en- .

tered by the court below adjudging the present

appellees entitled to the rents and profits. From

that decree, the present appellant took an appeal. - .

During the pendency of the appeal, and in the |

absence of a supersedeas bond,. the appellees

~ instituted an action in ejectment against the ap-

- pellant wholly based on the decree then on

- appeal, and before the case was determined on

_ appeal, a judgment in-favor of appellees was .

entered, from which no appeal was taken, .

“In January, 1927, this court (57 App. D. C.

78) reversed the decree of the court below and

remanded the case with instructions to-enter a

decree in favor of the present appellant. -Appel-

_ lant.then brought the —— action in ejectment -

against the appellees, basing his title to the prop-.

erty and right to possession upon the decree

engered in accordance with the mandate of this

court. Appellees pleaded the pacer pe an

ig ejectment in bar. Appellant replied alleging

that since the former judgment he had acquired —

~ aimew and different title from that asserted in'the

former ejectment proceeding.” ‘Appellees de-

murred to the replication and the demurrer was

sustained. Appellant elected to stand upon his

appellees: From this judgment the.present ap-

1 was prosecuted. s fae:

“There is nothing especially sacred about a

judgment in ejectment, nor anything exceptional .

that does not apply to.judgments in general.

‘Section 1002.of the code provides as follows:

‘Any final judgment rendered in an aetion: of

ejectment shall be conclusive as.to the title there-

‘by established as-between the parties to the

' action and all person’ claiming under them since —

the commencement of the action.’ It will be ob- __

served that this relates to final judgments. A -

judgment appealed from is not a final judgment.

t is merely an adjudication of the inferior»

_ court, the finality of which depends upon the

_ action. of the.supérior ‘court. Until the decree

~~ upon which the judgment in the first ejectment

* suit was re was disposed of on appeal, it

was not a final judgorent and was not therefore

conclusive upon ‘the parties on the question of. - . .

title. Title remained suspended* pending the:

_ appeal. - | Ree

“The judgment in the first ejectment proceed-

ing was dependent entirely upon the title ac-

quired through the decree of the Supreme Court

of the District ef Columbia. But-that decree,

on’ appeal, was yeversed and therefore became

void. It conveyed no title whatever upon which |

the parties could base their action for possession.

“As the court said in ‘Golde Clothes Shop v.

Loew’s Buffalo Theatre, 236 N. Y. 465, 470:

“We are told that the defendant rested upon an _

order of a court. The prop was insecure, and

. warning was not lacking of the danger of col-

lapse. When the order was reversed and the

proceeding dismissed, rights and duties were re-

established, inter partes, as if no order had been

made * * *.’ In that case a landowner had

been let into possession under a warrant in a

summary proceeding and proteeded to tear

_ down buildings and erect valuable improve- |

ments on the land pending appeal. The order

was reversed and ejectment proceedings brough)

- agajnst the tenant. It was held that there was

-not even an equitable defense to the action.

“The decree based upon the mandate of this

- ' . . court was the first-and only final decree upon

~ y

<- .

. - . —

which a-judgment in eiectment could be based.

The first ejectment suit was merely in aid of the

first decree. When that decree was reversed,

‘vacated, set aside, and for nothing held,’ the’

judgment for possession: shared the fate of the

decree upon‘which reliance was placed for. title.

It is elementary that when a judgment; order, of

. decree is set aside, a dependent judgment or

proceeding based upon it for its validity shares

its fate and falls with it. (4 C. J. p. 1205; Ure

v. Ure, 223 Thi. 454; Dodson v. Butler, 101 Ark.

416, 420.) a Tee a

“The reversal of a judgment or decree places

an implied ontigatingon a party who has re-

‘ceived the benefits 6f the erroneous. judgment or

decree,\to make restitution to the other party for

what he has lost. (U. S. v. Bank of Washing-

ton, 6 Pet: 8, 17.) .It was within the’ power of

the equity court, upon the mandate of this court,

to have ordered restitution of possession in its °

decree. Possessing this power, it would be tri-

fling with justice to hold that the court was with-

out power to grant restitution in ejectment.

“The judgment is reversed ‘with costs.”” -

Irrespective of the reasons assigned by the Court _

of Appeals for its conclusion, its fudgment was right

and should not be disturbed, it being settled law that —

no final judgment in ejectment between the same

parties and affecting the same property (as hefe) can:

prejudice rights of.either party which had not ac-.

crued at the date of the prior judgment, but the prior

_ judgment is limited solely to the rights of the parties

| - they existed at that time. eave !

BARROWS V. KINDRED :

a: Wall. 399 ah e

__ MERRYMAN V. BOURNE ;

9 Wall. 592, 599.

- WATSON V. JONES

: 80 U. S. 679.

C ~_ Birp v. Cross

123 Tenn. 419.

* - GORE V. GORE °

104 Tenn. 620, 624.

BREON V. ROBRECHT —_ >

- 118 Cals 9.

THRIFT V. DELANEY ~~ °°

69:-Cal. 188. ax

+ °*EOSTeR Vv. EVANS *-. 2 00° Oo:

a 51 Mo. 39. : a ae

‘HAWLEY V. SIMONS ’ Bike

102 Ill. 115, 120.

PREWITT V. WILBORN

_ _- 184 Ky. 638.

. FREEMAN ON. JUDGMENTS.

Sec. 712,-p. 1501;

Sec. 714, p. 1507.

Having thus demonstrated that the case does’ not

-thvolve a quéstion. of great and general. importance,

that the decision is consonant. with’ both justice and

fair dealing and has the support of reputable au-

thority, and that to have sustained the plea in bar.

- conscionable, it is respectfully submitted that, the

_ application should be denied. ‘S

_ALVIN L. NEWMYER,

-- Attorney for Respondent.

“Gorse C. GERTMAN;

| Of Counsel afer Diebiadons.

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