Respondents Brief — Reed v. Allen

- |

.

te eee a

FEB 19 1932

waeoor!. Le

INTHE *

Supreme Court of the Gnited States

OcTOBEB Tens, 1981.

No. 600.

. Kegan’ Reep, ‘@#onciana. R. Snoupson, Littun M. 8.

.. ° Repprne, Ero., er AL., Petitioners,

"98. |

-. +. °" Lorenzo ALLEN. De. )

. ~ a a S - MS

. BRIEF FOR THE RESPONDENT.

-.

a Auvin L. awn,

Grorce C, Gerrman,.

_ Attorneys for Respondent.

Panes ov Bracu 8. ADams, Wasuineton, D.O.

Q

me

3

‘

°

sd

.

¢

a

%

¢

7

.

. a

‘

.

*

.

cS

°

‘

v “ > .

-— oe

. ° e

f :

; -

: *

. -

.

° .

° f ,

¢ .

a x

aan

o ee

of 5

* ©

oe

.

Se

e,

. re] - a

. . Z

§ 7

. 4

.

° .

> .

° ”

. ry

4

a)

° .

Oo ».

an

.

. ‘

. -

~ . ‘ .

, e Ay |

"

.

. .

.

. : .

® t

&

; INDEX.

* «- Supgszor Inpex. -

Statement of the Case Rem eee oa. L 1

| The Equity Suit ..... SONA te eee

- The First Ejectment. Suit, No. 71594 Pt saari 2

_Law Rule 30, Supreme Court, D. De teeetiwews |

The Second ea No: 74482... eco. ee

The Three Suits Dus ea hebir vecaetwes Weiccves.

EE a ai eie sie scareasvareceneiies oS

Ene ee er ane i)

Section 1002: of le Ee ee cee

ZOO BGM TO 2... ee ec cadeseess greebades +a

The First Ejevtment Suit |......... aie dad 11

‘The Second en Suit es ARCO e DOME ee CONT ww

Res PO a6 doo be SAW iw csire nts esicdes occa Oe.

Conclusion .......... Wied sewkuenceons Perk ib

: ‘Cases Crrep. .

‘Allen v. Reed, 57 App. kk CE eer . 4

Barrows’ v. Kindred, So rrr 14, 16

Bird v. Cross, 123 Tenn. 419 ......... ah avaaeatae 16

Breon v. Robrecht, 118 Cal. 469 .............. 16

Camp v. Boyd, 229 U.'S. 530, 562...... besies 2

Chicago ete. R. R. Co.°v. Fosdick, 106 U. 8. 47, ni 2...

Cromwell vy. County of Sac, 94 U. 8. 351, 352...7 14

Eastern: Building & Loan Assn. v. Welling, 103

assign gg one ei pinnae hacen weaese 12

oe , ~ Index Continued.

is | , | > _ Page °

Gajea: v. mr aer & Burguieres, 135 __ 166, 187... - 17.

\ Golde Clothe op v.- Loew’s. Buffalo Theatres,

\ | 236 N./Y¥. 465, 470 (30 A. L. R. 931)...... 11

, Gore v. Gpre, 101 Tenn. CEE Aéckgaeeseeens 16

‘ Simons, 102 Jl. 115, 120 ...... reuece 17

Lyon v. Bursey, 36 App. D. C. ee 10

Mackenzie v. Engelhard Co., 226 U. S. 131, 142,

BE Sie ova ad Whe WERE CO esa en es Ki Oe ee ii

-Mahoney ¥. Van Winkle, 33°Cal. 448 ........... 16

Marks v. Cowles, ig sins hom 5 11

Merryman

_ Pierce v. National Bank of Commerce, : 268. Fed.

‘487, 496'..,...... . ECR REE 147

Prewitt v. Wilborn, 184 Ky. 638 .............: »

Root v. Woolworth, 150 U. S. 401,°410...... as.

Sherman v. Dilley, 3 Nev. 1, 22'.......... vee ae:

Thrift v. Delaney, 69 Cal: 188 ................ 16

Union Central Life Tysurance ‘Co. v. Drake, 214

PG BO ssyadcas ieiaNb es chtns ease rears 14

United Shoe Machinery Corp. v. United States,

8 Pe CE PET TTL ee eT TTC TT 14

United States v. Bank of Washington, 6 Peters 8,

ee SPORE Orr S Le Ter ene Pee ree re 6, 10

Watson v. Jones, 17 Wall. 679: ............008. 16

* Statutes anp Text-Booxs'Crrep.

-D. C. Code, Section 1002 .....c......eeeeee. 10, 12

-Black on Judgments, Vol..2, sec. 656, p. 996.... 17°

‘Freeman on Judgments, Vol. _, sec. 714, p. 1507 17

Ruling Case Law, Vol. 9, p. 926 0... seeeee sence: ‘17

Warvelle on Ejectment, sec, 492, P. Oe “17

2

w

Bourne, 9 Wall. 592, 599 ..2........ 16.

Northwestern Fue|(o. v. Brock, 139 U.S. 216.. 9

“aN THE

| Supreme Court of the Gnited States:

OcToBER Tune, 1931.

é

a

~_—

‘Kezran ReeEp, Greorciana R. Smpson, Lassen M. H.

REDDING, Ere., ET AL., Petitioners,

ae,

LorrfZo ALLEN,

BRIEF FOR THE RESPONDENT.

—

9

; Statement of ~~ Case.

’ An understanding of the essentials of this case re-

‘quires a more: comprehensive, statement of the facts ae

aud its history than’is made \by the petitioners. Es- * :

pecially is this true inasmuch as the equity suit is the

_ foundation of the present and‘ the prior ejectment

- suits. Instead of the equity suit being collateral to

the ejectment suits, as“claimed ‘by the petitioners

(Brief 5, 13), it is the pith of the ejectment suits as

will be presently pointed out. .

} : »

ie

1. The Equity Suit, _

On August 10, 1922, a Bill.was filed in the Equity

-branch of the Supreme Court of the District of Oo-

lumbia by one Walker to determine the ownership of

pertain rent he had collected from the property here

- involved. He. named the petitioners and the respon-_

dent as defendants (R. 12). .

The petitioners and the respondent were wowdend

to. interplead, the petitioners on the one*hand, and

the ‘respondent on; %he other, touching their rights to

the rent which Walker had in the meantime deposited

in the Registry of the Court (®. 9). ;

The éause then canie on to be heard by the Court -

upon the tssues raised by the pleadings between the

defendants (R. 9).

‘The Court found that the determination of the

: - question | of the ownership of the rent depended upon

' the ownership of the real éstate whence the rents

_were realized (R. 9, 10). So recourse was made to the

Will of Siias Holmes, deceased, the common ancestor

who died seized thereof (R. 10), for the determina- ~

tion-of the ownership of and the title/ to the real

estate. This it had a right to do. Camp v. Boyd,

229 U. 8. 530, 552.

‘Whereupon the Court on the 2th day of J uly,

1925, upon the issues raised By the. petitioners. on the

one hand, and the respondent on the other, decreed |

‘as follows (R. 9; am) s,

‘“This ‘cause came on to be heard upon the

‘ issues graised by the pleadings between the par-

ties defendant hereto, as more particularly set

forth in their answers to the bill of complaint,

said defendants Lorenzo Allen on ¢he one hand

and the’ defenjlants; K Keziah Reed, et. al., on the

|

‘

: 3

in been required‘to interplead between them touch-

ing their rights to the fund ordered to be de-

posited iy, the Registry of the Court by the plain-

other, having hgretofore by decree entered here-

. tiff, Thomas Walker, and it appearing to the

- Court that the determination of the. proper dis-

position of said money gepends upon the. true

_ construction of the last will and testament of Silas

Holmes, deceased, late of the District of Coluni-

bia, duly admitted to probate and record by this

Honorable Court and now of record in the office

of the Register of Wills of the District. of Cotum-

bia, arr’ the parties having stipulated in open

- court that the fagts set forth in the bill of com-

plaint and in the,answers thereto as to.the heir- .

ship of said parffes defendant are true, and the

questions of law having been argued by counsel

and duly considered by the Court, it. is, by the

Court, this 24th day of July, A. D. 1925,

‘* Adjudged, ordered 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 Virginia Allen, with-

out leaving child her surviving, the real estate

described in the bilkhof complaint, of-which said -.

testator died seized and possessed, is devised to’

Walter Holmes, the adopted son of said Silas

‘Holmes, and to the brothers and sister of the .

said Silas Holmes, or to their heirs, if deveased, -

in equal shares, share and share alike, per

stirpes; and it appearing to the Court that the

fund on deposit in the Registry of the Court as

aforesaid répresents-the rents which have accrued -

from said feal estate since the death of the’afore-

é

said Virginia Allen, it is, 7 z

‘*Adjudged, ordered and -decreed ‘that the said

rents be divided among the aforesaid Walter °

Holmes and thé other defendants hereto, who are

brothers. and sisters of the said Silas* Holmes, de-

eo

. , 4 7 |

ceased, or heirs at-law of eceased. brothers -and

sisters of the said Silas eee rls in —_ sab “aet

per stirpes.

. * “And it is ‘farther adtindged: ileal and de-

oe - creed that the Court costs, including fee of guar-

dian ad litem, shall be paid out of the assets of

the estate.’’

Thus the Court adjudged, ordered and de sed that

. the real estate belonged to the petitioners, equally, as

devisees of Silas Holmes, deceased, and that by rea-

son of such ownership they were also entitled to the

nt which Walker collected therefrom. |

' ‘The respondent took and perfected an appeal from

said decree, giving a cost bond (R. 10) which, of

‘course, protected him, inter partes. +

Upon the hearing and determination of the appeal,

the Court of Appeals adjudicated that Silas Holmes’ ©

Will was ‘inoperative and that he: died intestate as to

the real estate. Accordingly, i it reversed the appealed ,

decree and remanded the cause for further proceed-

ings not inconsistent with its opinion.(R.15).57 App.

D.C, 78. | )

‘When: the mandate of the Court of Appeals came

down the Equity Court on May 27, 1927, ‘‘vacated,

set aside gnd for nothing held’’ the appealed decree

of July 24, 1925, and further adjudged, ordered and

‘decreed that Silas Holmes’ Will was inqaperative to~

pass the title to his real estate and that therefore he

died intestate. It then directed.the payment of th

rent ‘to respondent as.the sole heir at law of Silgs

‘ Holmes, deceased; the decree being as follows (R. 16):

. “This cause came on to Be further heard upon |

the mandate of the Court of Appeals of the Dis-

} .

. . . .

. = . °

©

a. f . P . or —

v

«©

Silas Holmes, decegged, ‘mentioned in th

5.

trict of Columbia, filed herein on the 16th ai of

February, 1927.. Thereupon it is, this 27th day

‘of May, A. D. 1927, s

‘* Adjudged, ordered and decreed as follows: ,

‘*1. That the decree entered herein on the 24th

day of July, A. D. 1925, be, and the same is

hereby vacated, set aside and for nothing hejd;

‘2. That the ‘true interpretation of ‘tho of

li of

complaint, is that upon the death of said de-

t’s daughter, Virginia Allen, without: leav-

ing child her surviving, the said will became in-

operative as to the real estate therein described

‘and the said testator therefore died intestate as

to the said real estate; .. :

**3, That the fee of t ardian ad Litem

herein be, and the same is cate fixed at One

Thousand Dollars ($1000.00).;

“4. That the balance of the fund walle” is the

subject matter. of this suit, and which is now. on.

' deposit'in the registry of this Court, be paid to

the defendant Lorenzo Allen, as the sole heir at —

law of the aforesaid testator, after dedu ing

therefrom any unpaid court costs herein: jzfcurred

by the parties to this suit.’’.

/

Therefore we have it adjudicated first by the Ap- |

pellate Court of this jurisdiction on January. 3, 1927,

and next by the Equity Court on May 27, 1927, pur-

suant to the mandate of the Appellate’ Court, that the

petitioners: are not but the respondent is the owner

of the real,estate here inyolved by: \inheritance from

‘ his great grandfather (R. 15,16).

Notwithstanding this, the possession of said seal

estate is withheld from the respondent by the peti-

tioners and the’ present litigation arises out of his

effort to obtain its possession.

/ . Yi

2. The First Ejectment Suit, No. 71594.

' Armed with the said decree of July 24, 1925, and

relying upon its integrity for their support (R. 9),

the petitioners, unperturbed by the pendency in the

Court of Appeals of respondent’s appeal therefrom,

| . and to which they. were the. appellees (57 App. D. ¢.

78) applied to the coordinate law branch of the said

. Suprerhe Court to give them posspssion of the real

estate which the decree of the coordina equity

branch of the Court had declared belonged to- them,

and also for mesne profits (R. 6). | |

They based their-suit, their source of title and their

right .to-~possession solely upon. the defeasible decree

of July.24, 1925, and the items of Silas Holmes’ Will

which it construed (R. 8,9). They, of course, had no

ather title upon which to-base a suit for possession

or meshe profits, as : ae

The respondent in reply to their declaration stated,

inter alia, that the source of petitioners’ title and:

‘their right to possession, namely, the decree of July

24, 1925, was pending on appeal in the Court of Ap-

_peals and that the subject matter of the declaration

had been transferred from the jtrisdiction of tlie Su-

preme Court of the District of Columbia to the Court

_ of Appeals. for final determination (R. 13).

To that defense the petitioners replied (R. 13) that

it did not appear that the respondent had superseded

the decree.of July 24, 1925 (R. 13) and their demurrer

to the plea was sustained, and, in due course, a judg-

ment, upon. demurrer, was entered against respon-

dent for possession (R. 15), and upon trial a judg-

ment - for $1686.46 mesne profits of the real. estate

was awarded against respondent: (R. 15). ° /No. appeal -

being taken’ from either judgment, ndne was neces-

' y Sary; inter partes. ~United States v. Bank of Wash-

ington, 6 Peters, 8, 19. . :

‘Law Rule 30-was in force wher ‘petitioners filed

their declaration. It is as follows: ca Ree

. “In. ejectment suits, ‘the plaintiff shall file,

' along with the “declaration, a list of all deeds,

proceedings, or other documents relied upon as —

._ constituting his chain of title, together with az

_ -reference to the place of record of each, if’ re-

corded; and the defendant shall file. along with

issuer joined, the respective parties shall file in

the case, and serve copies as other pleadings are.

requirea@to be served, a notice of objections,. with

the’ grounds thereof, to the deeds, proceedings,

or documents, those not objected to shall be sub-

_* ject to no further proof, but. shail be subject: to

the. ruling of the trial court as to the admissibil- ~

ity or legal effect thereof.’’

3. The Second Ejectment Suit, No. 74482.

Armes with the aforesaid decision of the Court of .

Appedls dated January '3, 1927, and the final decree

of May 27, 1927, which adjudged the respondent tobe

the owner of the real estate here involved and by rea-

son thereof entitled to its possession, the respondent

on December 14, 1927, filed his present ejectment suil

, to obtain possession (R. 1, 2) and as his source of

titlé, as required by Law Rule 30, relied upon the |

said decree and .opinion of the Court of Appeals —

(R.2). °°

The petitioners, as their sole defense, set up their .

final judgment in the first ejectment suit (R. 5, 6, 7),

‘which defense was sustained by the Court. (R. 20), |

from which action the respondent perfectéd his ap-,

- his plea a like list. Unless, within ten days after _

—

peal to the Court of Appeals (R. 20), which Court,

after hearing, reversed the judgment appealed from

(R. 23), and the same is now here for review.

The equity branch of the Court could and doubtless

would have executed its decree of May 27, 1927, had ‘it

been requested so to do, by requiring the petitioners

to give possession to the respondent. It ‘seems, how-

ever, to have been overlooked and in consequence the.

present ejectment proceeding was begun by respon-

dent to obtain possession. Root v. Woolworth, 150

U. S. 401, 410.

The Three Suits.” ree

Therefore we ‘a three suits instituted in the

Supreme Court of the District of Columbia between

- the same: partion 4 and affecting the same property.

. Viz:

(a) First, the equity suit, No. 40408, filed May 4,

1995, determining tl Ri: to the real estate, ifs “pos-

session, and the rent therefrom. |

(b) Second, the. ‘first ejectment suit, No. 71594,

filed June 1, 1926 (R. 5) by petitioners against re-

. spondent, based upon the decree of July 24, 1925, an

appeal from which was at the time pending in the

Court of Appeals, for possession and mesne profits.

(c) Third, the second ejectment suit,, No. 74482,

filed December 14, 1925 (R. 1) by respondent against

petitioners, based. upon the final decree of May~ 27,

1927, made pursuant to the opinjon- and: mandate of

the Court of Appeals (R. 2) and which decree re-

versed the first decree of July 24, 1925, ial posses-

ston and mesne profits.

eam

ARGUMENT. a tet

The equity suit was in no sense collateral to the

. ejectment suits. It was the foundation of the first”

and the present ejectment suits. It alone established

the title asserted by the petitioners in their ejectment :

suit and now asserted by the respondent in the pres-

ent ejectment suit. In both suits it was relied on as

-.-ereating the. only evidence of title te the property

here involved. | ; =

ile the clear and convincing reasoning of’ the

_law applicable to thé facts by the Court of Appeals

‘in its decision needs no further support,’ nevertheless _

the following observations may be pertinent.

Restitution. :

- Although Mr.. Justice Van Orsdel emphasizes the

applicability of thi

ent case, it receives nly scant notice in the peti-

tioners’ brief and its egntrolling influence on thé case

is nowhere refuted them. , ;

This is an admissign by the petitioners that they

cannot. escape the unyielding ‘rule of restitution by

surrendering to respondent what they gained through

the enforcement of their erroneous decree.. Tliey

point: to no way of escape from it. Northwestern -

Fuel Co. v. Brock, 139 U. S, 216. ete

4 Notwithstanding the doctrine of res judicata now

applicable to all actions alike, it has always been the

, law as we vunderstand it—

(1) Irrespective of the- nature of the judgment,

the party against whom the erroneous judgment has

os enforced does not lose his remedy against the

her party to the’judgment. On.the reversal of the

judgment the law raises an obligation in the party to

| Be

105

-the record who has received the benefit of the er- .

roneous judgment to make restitution to’ the other

party for what he has lost. The mode of proceed-

ing to effect this object must be regulated according

to circumstances. ‘)Wnited States v. Bank of Wash-

ington, ante,

(2) The reversal of the judgment: gives a new right

or éause of action against the parties:to the judgment

and_creates.a legal obligation on, their part to restore

- what the other party has lost by reason of the en-

forcement of the erroneous judgment; and, as between

the parties to the. judgment, there is all. the ptivity

necessary to sustain and enforce such right. Brhited

States v. Bank of Washington, supra. —

There is nothing in the doctrine of ‘res judicata

: which deprives ‘the victorious litigantyof his right. to

have restored-to him what his adversary gained

through the enforcement of an erroneous decree or

which would deprive ‘him of the benefit of his new

_right or cause of actiow which the reversal of the

judgment gives’ him. ,

Sectifn : 1002 of the Code. ;

Prior to the Code of the District of Columbia judg-

ments in éjectment were inconclusive. .Lyon v. Bur-

sey, 36 App. D. C. 235. Therefore what Section 1002

of the Code accomplished was ‘merely to-Ancorporate

in'and declare the doctrine of res judicata applicable

to ejectment actions and it put them’ upon the same

equality as other actions.

‘Consequently, in his opinion, Mr. . Justice Van

Orsdel points out that there is nothing sacred about

a judgment in ejectment nor anything exceptional

that. does not apply to judgments in general (R. 24).

ae

P

11

a

The Equity. Suit.

In its last analysis the crua or essence of the sub-

ject of the,equity suit was that of — the rent being

‘secondary.

In this connection we especially invite the sttintion nang

of the Court to the. apt decision 6f the Court of Ap-

peals of New York written by now Mr. ‘Chief Justice

Cardozo in Golde Clothes’ Shop -v. Loew’s Buffalo °

Theatres, 236° N. Y. 465, 470 (30 A. L. R.-931), re-

ferred to by Mr. Justice Van~Orsdel in the opinion

of the Court of Appeals (R. 24). .

The equity branch of the Court having first ob-

tained jurisdiction of ‘the ‘subject, no coordinate

branch of: the Court could usurp. jurisdiction. The

braneh of the Court that first. obtained jurisdiction

retained it wntil its final decree was made. Until the

appeal from the decree of July 24, 1925, was finally ©

disposed of, the equity branch of the Court rétained

exclusive jurisdiction of the subject. Mackenzie v.

Engelhard Co., 266 U. S. 131, 142, 143.

The decree of July 24, 1925, adjudged the peti-

. tioners to be the owners of the property but the de-

Cowles, 61 Ala. 299.

feasible quality of their title by reason of the appeal

was ingrafted upon it by operation of law and propa-

gated itself through all subsequent stages, Chicago

etc. R. R. Co. v. Fosdick, 106 U.S. 47, 71; _— v.

The First, Ejectment Suit.

On. June 1, 1926-—the date the first ejectment suit

was fled—the - ‘dispute betweeri the petitioners and

“the respondent over the title or ownership of the

property had heen decided by - equity branch of

‘

. - . Swarr tenn mee ree LI rece TH A

12

the Court pursuant to the issues raised there and ‘the

_ correctness of that decision was pending before the

Court of Appeals. No other branch of the Court,

therefore, could supplant the exclusive jurisdiction of

the Appellate Court to finally decide the question of

title..

No controversy can be treated as res judicata until

it has been finally diseussed and decided in a court

of last resort. Haeetern Building and Loan Associa-

tion v. Welling, 103 Fed. 352, 355:

There was and could be no issue of title inv rolved i in

the first ejectment suit and ‘none-is involved here: In |

the first ejeetment suit the petitioners presented the

decree of July 24, 1925, as their. evidence of right to

possession, and the Court, under Law Rule 30, passed

upon the legal effect thevoet, There gould not pos-

sibly be any title established by the ejéctment suit as

that was the question adjudged by And involved in

the defeasible decree of July 24, 1925, upon which

the ejectment suit was predicated. Likewise no title

is to be adjudicated in the present ejectment suit.

That has been disposed of by the final decree of May

27, 1927,

?

The Second Ejectment Suit.

Although the final decree of May 27, 1927 (R. 16)

__ adjudged the respondent to be owner of the prop-

erty, its possession is detained from him by the peti-. ~

_ tioners upon the pretence that their title is superior

to that of the respondent by virtue of Section 1002 of

the Code. In other words; it is the petitioners’ con-.,

tention that the final decree of the first branch of the

Supreme Court of the District of Columbia pissed

May 27, 1927, pursuant to the mandate of the Court

-

.

of Appeals, is merely a piece of waste paper and en-

titled to no faith or credit because while the appeal.

‘ was pending in the Court of Appeals from the decree

of July 24, 1925, they procured a final judgment

against respondent for possession of the property

based upon their decree: That is to say, it is the

petitioners’ coiiféntion that. a coordinate law branch

of the Supreme Court: of the District of Columbia

can divest the Appellate Court and the coordinate

equity branch of their jurisdiction to establish’ title

and do so itself, and thereby defeat any final decree

that fhe first Court might make pursuant to the man-

date of the Court of Appeals.

The Court of Appeals, through its very learned

opinion written by Mr. Justiée Van Orsdel, has de-

cided that the final decree of May 27, 1927, is entitled

to full faith and credit; that ‘it ‘puts an end to the

question of title and the right to possession aid it

must be respected; that-the coordinate law Court had

no jurisdiction of the question of-title as that was -

exclusively pending in the equity branch of the Court

and any attempt to invoke the aid of the law branch

Was necessarily subordinate to, ancillary and: depen- °

_dént upon the final decree in’ the equity branch of the

Court. |

Res J udicata,

. ‘For the Court of Appeals to have decided that Sec-

tion 1002 was a barrier to respondent’s suit would

have been unconscionable as well as opposed to the,

law; it would have permitted sstbloners to retain

possession of property they do not own, never owned

and were never rightfully ‘entitled to possession of,

according to the final decree of May 27, 1927,

can 14

In their ‘specification of error (petitioners’ brief,

p. 6) the petitiorers do not complain that the decision

of the Court of Appeals is unjust and not consonant:

_ with fair dealing or even that they are wrongfully

deprived by it of any rightful possession of the prop-

erty. Their sole complaint is that it ignores a gen-

eral proposition of law, namely, res judicata, which

proposition as has been pointed out plays no part

in, the present case.

The trué test of the identity of. causes of action

is the identity of the facts essential to their main-

tenance. Pierce v. National Bank of Commerce, 268

Fed. 487,496. Union Central Life Insurance Co. v.

, Drake, 214 Fed. 536.

The respondent’s’ possession was taken from him j in

the first ejectment suit because he could not trace

title to himself. _He should not be defeated in the

‘present ejectmef suit, by reason of the final judg-

ment in the first.ejectment suit, when he presents and

traces a paramount title to himself since acquired by

the decree of May 27, 1927, made -pursuant to the

mandate of the Court of Appeals, and which decree

established title, inter partes. Barrows v.: Kindred,

4 Wall. 399. \

-This Honorable Court in United\Shoe Machinery’

Corp. v. United States, 258 U. S. 451, quoted the

doctrine of res judicata from Cromwell v. County of

Sac, 94 U.S. 351, 352, as follows:

°**There..is a Siietins between the effect of a

jadgment as a bar or estoppel against the prose-

cution of a second action upon the same claim or

demand, and its effect as ar estoppel in another

action between the same. parties upon a different

claim or cause of action.” In.the former case,

o .

the judgment, if rendered upon the merits, con-

stitutes an absolute bar to a subsequent ‘action

* * * concludin: parties and those in privity

with them, not onl¥ ass to every matter which was

offered and received’ to sustain or defeat the de- |

mand or claim, but as to any othet admissible |

matter which might have been offered for that |

purpose. * * ™* But where the second action

between the same parties—~is upon a. different |

claim or demand, the judgment in the prior’ ac-

tion operates as an estoppel only as .to those

matters in issue or poiits controverted, upon

. the determination of which the finding or verdict.

was rendered. In all cases, therefore, where it

is, sought to apply the estoppel of a judgment

rendered upon one cause of action to matters

arising upon a different cause of action, the. in-’’

quiry must always be as to the point or question |

actually litigated and determined in the original

action, not what might have been thus litigated

and determined. _

And the Court then goes‘on to say—

‘In other ‘words, to détermine the effect of a

former judgment, pleaded as an estoppel, two

questions must be answered: (1) was the former

judgment rendered ‘on the same cause of action?

(2) If not, was some matter litigated in the

former suit determinative of the matter in con-

troversy in the second suit? To answer tliese.

questions, we must look to the pleadings makiité

the issues, and examine the record to determine

the questions, essential to the decision of. the

‘ormer controversy.’

aie

In the first ejectment. suit ‘the ‘petitioners relied

“upon the defeasible deeree of Juiy 24, 1925, as their

evidence and source of title while in ™ present eject-

¥

.

@ : no

‘. i eee at oe it TES PRT De it hits Prot

adh es Re 1 pe Sass z ee cee ni ab A

‘ ‘ ‘. : ry '

= : an 7

: $ . ‘ _ . =

a _ ; ‘

’ ;

16 eer.

‘ment “suit: the respondent relies as his source of title

upon the final decree of May ‘27, 1927. Obviously,

_ therefore, the rights-of the respondent were not and

~ eould not have been adjudicated in ‘the first eject-

ment suit because they were not established until

". after: the final *judgmerggin the first ‘ejectment was:

‘~~ rendered. *Consequently the judgment in the first

ejectment suit ‘was not rendered on the same matters

which.are involved in the present. ejectment suit. _ 5.

The principle of law which runs throughout the *

decjsions and textbooks on ejectment was stated ‘by -

the Court in Bird'v. Cross, 123 Tenn. 419,-thus:

“There can be no doubt that a judgment ren-

dered in an action to recover possession of -real

property under the system of pleading and prac- .

"tice adopted in this State, is;-as to all matters

-put in issue and passed on in the action, conclu- ~

.Sive between the parties and their priviés and

a bar.in another action betwéen the parties or

_ privies when the same matters are diréctly

im issue. The bar of a judgment ‘im such an ac-

tion is, however, limited to thé rights of. the

. ‘parties as they existed at the time when it was

rendered; and neither the parties nor their priv-

'.* £8 oe precluded by the same from showing,.in a s |

La

subsequent action, any new , matters occurring ~*

after its rendition, which giv€ the defeated: party

a title or right of possession.’’ |

To the same efféct are:

Barfows v.. Kindred, -ante; Merryman vy. ae

Bourne, 9. Wall. 592, 999; Watson v. Jones,

..» 1¢ Wall 679; Gore v. Gore, 101 Tenn. 620,

_ 624; Thrift v. Delaney, 69 Cal. 188: Breon

v. Robrecht, 118 Cal. 469; Mahoney v. Van

at the beginning or ending of that action;'respon- .—

“17

Winkle, 33 Cal. 448; Foster v. Hvans, 51 Mo.

393 Hawley v.} Simons, 102 Ill. 115, 120;

Prewitt v. Wilborn, 184 “Ky. 638; Gajan #

Patout & Burguieres, 135 La. 155, 157; Sher-’

- man v. Dille¥, 3 Nev. 1, 22; Freeman. on

Judgments, Vol. 2, Sec. 714, p. 1507; War-

_ Velle on ‘Ejectment, Sec. 492, p. 547; Ruling

Case Law, Vol. 9, p. 926; Black on Judg-

ments, Vql. 2, Sec. 656, p. 996. ° P

Respondent acquired his title with ‘he right to

possession after the execution of the erroneous decree

of July 24, 1926, in the first eje@ment suit; in the

lirst ejectment suit respondent had no evidence of

title to assert and consequently no right to possession

dent’s present title and right to possession were not

litigated. in the first ejectment suit and respondent’s

_ present evidence of title and right: to possession’ did

not exist and was unavailable to him at the beginning”

and ‘conclusion of the first ejectment suit,

3

7 CONCLUSION.

It is respectfully submitted, in conclusion, that the -

decision of the Court: of Appeals is right and shoy!

be affirmed.

- Atvin L. Newmyze,

i ee . - Gzorce C. Gerrmang, |

ss & : e. Attorneys for Respondent.

e .