Appendix — Gannon v. Britton
Supreme Court brief1955
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APPENDIX
EXHIBIT 1
IN THE SUPREME CouURT OF THE STATE OF OKLAHOMA
W. R. Britton, )
Plaintiff in Error, )
Vv. ) No. 36,249
Mark Gannon, ) Filed in Supreme Court of
Defendant in Error, ) Oklahoma, May 3, 1955.
ANDY PAYNE, Clerk.
SYLLABUS
1. A state court is not required to recognize the judg-
ment of a court of another state, territory, or country
subject to the jurisdiction of the United States, where
the court rendering the judgment was without juris-
diction or where the judgment was obtained by ex-
trinsic fraud.
2. In action on jvdgment of court of another state, de-
fendant may impeach the judgment on allegations of
fraud in procuring it, extrinsic to the merits of the
cause.
APPEAL FROM THE DISTRICT COURT OF
PONTOTOC COUNTY,
Honorable John Boyce McKeel, Judge.
Action on judgment of Illinois court. Judgment for
plaintiff and defendant appeals.
REVERSED.
Busby, Stanfield, Busby & Deaton,
By David Busby, Ada, Oklahoma, for plaintiff in error.
McArthur & Orton,
By C. L. McArthur, Ada, Oklahoma, ;
for defendant in error.
‘alias.
[APPENDIX]
ARNOLD, J.:
Mark Gannon brought this action in the District Court
of Pontotoc County against W. R. Britton on a foreign
judgment rendered in favor of said Gannon against Brit-
ton in the Circuit Court of Fayette County, Illinois, in the
sum of $18,000.
Defendant filed answer consisting of a general denial
and allegations to the effect that Mark Gannon was only
a nominal party; that the real party in interest was Roy
or “Spike” Gannon, brother of Mark Gannon; that said
“Spike” Gannon had advised defendant that he was filing
suit to recover certain personal property owned by him
and defendant which had been sold pursuant to mortgage
foreclosure proceedings and that Britton was a necessary
defendant, but that no judgment would be taken against
him, and relying on these representations, although served
with summons, Britton made no effort to defend such suit
and did not know that judgment had been taken against
him until the instant suit was filed. Upon motion of plain-
tiff and over the objections and exceptions of defendant
all allegations of defendant’s answer except his general
denial were stricken.
When the case came on for trial defendant moved for
a jury trial, which motion was overruled and exceptions
allowed. Plaintiff offered in evidence authenticated copies
of the alias request for summons, the summons and return
thereon showing personal service on Britton, affidavit as to
military service, motion for leave to file amended com-
plaint, affidavit of mailing, notice, the amended complaint
with exhibits thereto, including authenticated copy of the
judgment in the Illinois case and rested. Defendant offered
evidence, which was objected to by plaintiff and objection
sustained, to the effect that one Roy “Spike” Gannon about
July 10, 1946, called defendant offering to purchase a one-
third interest in Britton’s drilling business; that defendant
_
[APPENDIX]
Britton owned about $65,000 worth of drilling equipment
upon which there was a $20,000 mortgage; that Gannon
offered to pay $15,000 for a one-third interest, to which
Britton agreed; that Gannon paid Britton $13,000 in cash,
saying he did not want any record made of the transaction
as he had income tax troubles; that it was agreed that
Gannon would share one-third of the profits, if any, made
by use of the drilliz.g equipment, which usually ran about
$3,000 per well; that it was agreed that the remaining
$2,000 of the purchase price of the one-third interest would
be deducted from Gannon’s share of the profits; that later
“Spike” Gannon asked Britton to sign a bill of sale putting
the one-third interest in his brother’s name, Mark Gan-
non (plaintiff here); that actually Mark Gannon never had
any interest in the business but “Spike” Gannon at all
times was a silent partner in the business; that five wells
were drilled after this partnership was formed, but three
were dry and the other two were not profitable, so that the
partnership became unable to pay the installments on the
mortgage and the mortgage on the rig and equipment were
foreclosed; that after the rig and equipment were sold at
public auction in the foreclosure proceedings in January,
1947, “Spike” Gannon and his attorney came to Britton
in Illinois and told Britton that because of certain irregu-
larities in the foreclosure proceedings they might be able
to get a portion of the equipment back; that to do this it
was necessary to file suit, making Britton a party, but so
far as Britton was concerned it was a friendly suit and
Britton would not be sued for any money and Britton need
not worry about any judgment; that they needed Britton’s
co-operation, which Britton agreed to give, giving Gannon
and his attorney a sworn statement as to all the facts con-
cerning the indebtedness on the equipment; that summons
was served on Britton; that the original complaint (which
was in evidence) asked for no relief against Britton other
than that a lien be declared in Gannon’s favor against the
interest of Britton in the equipment which Gannon sought
[APPENDIX] -
to recover; that thereafter on several occasions Gannon
told Britton to forget about the case, that Britton would
not need a lawyer, that Gannon’s lawyer would take care
of Britton’s interest; that relying on Gannon’s representa-
tions Britton returned to his home in Ada, Oklahoma, and
heard nothing further about the case until the instant suit
on the foreign judgment was filed in Pontotoc County on
February 21, 1952; that Britton never received notice that
the original complaint had been amended to ask for per-
sonal judgment against him, or that the suit had been dis-
missed with prejudice against all defendants except Brit-
ton; that Mark Gannon had never made any inquiry about
the progress of the business but that “Spike” Gannon had
kept in close contact with it all the time of its existence.
The court found that under the full faith and credit
clause of the Constitution of the United States it had no
right to hear and determine the validity of the defendant’s
defense raised by his amended answers and cross petition
and proffered testimony in support thereof; and entered
judgment in favor of plaintiff for the amount prayed for.
Defendant contends that the court erred in refusing to
allow him to present evidence to the effect that the judg-
ment in Illinois, the basis of the present suit, was pro-
cured by extrinsic fraud and therefore not entitled to full
faith and credit in Oklahoma.
The general rule is that a state court is not required
to recognize the judgment of a court of another state, ter-
ritory, or country subject to the jurisdiction of the United
States, where the court rendering the judgment was with-
out jurisdiction or judgment was obtained by extrinsic
fraud. Stephens et ux v. Thomasson, 63 Ariz. 187, 160 P.2d
338, and cases therein cited. Whatever plea would be good
in the state in which the judgment was rendered may be
pleaded in suit on the judgment in any other court in the
United States. Ibid. Extrinsic fraud has been defined as
Re ae ae
Ve
[APPENDIX]
any fraudulent conduct of the successful party which was
practiced outside of an actual adversary trial directly and
affirmatively on the defeated party whereby he was pre-
vented from presenting fully and fairly his side of the
cause. Included in such definition are false representations
that the defeated party is merely a nominal party against
whom no relief is sought, false promises of compromise,
concealment of the suit, kidnapping of witnesses, and the
like. Calkin et al v. Woolcott et al, 182 Okla. 278, 77 P.2d 96.
In such cases a court of equity had power to annul the
decree so obtained. Ibid. See also American Railway Ex-
press Co. v. Louis Murphy, 234 Ill. App. 346, Village of
Hartford v. First National Bank of Wood River, Ill. App.;
30 N.E. 2d 524. Some cases, as United States v. Throck-
morton, 99 U.S. 61, 25 L.Ed. 83, put this on the ground that
in such cases there has never been a real contest in the
hearing of the case; others, such as Williams v. State of
North Carolina, 65 S.Ct. 1092, cited as authority in Stephens
v. Thomasson, supra, on the ground that such conduct on
the part of the successful party prevented the court from
having jurisdiction to render the judgment which was
rendered. Others, such as Levin et al v. M. Gladstein, 142
N.C. 482, 55 S.E. 371, put it on the ground that a foreign
court is not required to give greater faith and credit to the
judgment than it is entitled to at home, and when the state
in which the judgment was rendered weuld enjoin the
enforcement of such judgment because of the circumstances
under which it was obtained, the sister state may do like-
wise.
Regardless of the reason assigned for the rule, the
weight of authority is overwhelming that a defense of ex-
trinsic fraud of the nature here sought to be plead and
proved may be interposed in a suit on a foreign judgment,
not for the purpose of reviewing, setting aside, modifying,
or annulling the judgment of the sister state, but to pre-
vent its enforcement in the collateral court. See American
— we
[APPENDIX}
Railway Express Co. v. Murphy, supra; Reisman v. Central
Mfg. District Bank, Ill. App., 30 N. E. 2d 524. The trial
court erred in refusing the proffered evidence of extrinsic
fraud.
Reversed and remanded for a new trial.
JOHNSON, CJ., WILLIAMS VCJ. and CORN, BLACK-
BIRD and JACKSON, JJ., concur.
EXHIBIT 2
STATE OFILLINOIS )
: SS. IN THE CIRCUIT COURT
COUNTY OF FAYETTE)
MARK GANNON, )
Plaintiff, )
Vv. )
THOMAS S. DORAN, W. R. BRITTON )
d/b/a W. R. Britton Drilling Company, ) No. 47-1052.
First National Bank of Vandalia, and )
General Finance Corporation, a cor- )
poration, )
Defendants. )
DECREE
The above cause coming on to be heard on this 29th
day of September, A. D. 1951, and upon motion of the
Plaintiff, cause is dismissed as to Defendant Thomas S.
Doran, and the First National Bank of Vandalia; and it
appearing to the Court that Defendant W. R. Britton, d/b/a
W. R. Britton Drilling Company was personally served
with process of summons more than twenty (20) days prior
to the third Monday in the month of September, 1951, and
that he has not filed his answer or appearance in said
cause, and being three times called in open court appears
—
[APPENDIX]
not, nor anyone for him, it is therefore ordered, adjudged
and decreed that the said W. R. Britton be and is hereby
declared to be in default.
Now again on this day this cause coming on to be
heard upon the amended complaint filed herein which is
taken as confessed, and by default as to the Defendant
W. R. Britton, and Plaintiff appears in open Court and
offers sworn testimony in support of said verified amended
complaint, and the Court being fully advised in the
premises finds that it has jurisdiction of the parties and
of the subject matter hereto and that as alleged in Plain-
tiff’s complaint the Defendant W. R. Britton received the
sum of $13,000.00 for an undivided one-third interest in
the property described in said complaint at a time when
the said Defendant had suffered said property to be mort-
gaged, and without notification to the said Plaintiff that said
property was subject to mortgage, and that thereafter the
said Defendant, W. R. Britton upon other occasions mort-
gaged said property without the knowledge, consent or
permission of the Plaintiff, all of which resulted in a loss
of said property by virtue of a foreclosure; and it further
appearing to the Court that by virtue of agreement be-
tween the Plaintiff, and Defendant W. R. Britton, that
W. R. Britton agreed to pay to the Plaintiff the sum of
$1,000.00 per well, for each well drilled with the oil well
drilling equipment described in plaintiff's complaint, and
though he often promised to pay the said plaintiff therefor,
that he failed, neglected and refused to pay; and it appear-
ing from the evidence that the said W. R. Britton drilled
five (5) wells with the oil well drilling equipment de-
scribed in Plaintiff's complaint after the sale of an un-
divided one-third interest therein to the Plaintiff and
after his agreement to pay to the Plaintiff the sum of
$1,000.00 per well, the Court therefore finds that the De-
fendant is indebted to the Plaintiff on an accounting pur-
suant to said agreement, in the sum of $5,000.00.
—viii—
[APPENDIX}
The Court further finds that the Defendant W. R.
Britton has wrongfully had and received the sum of $13,-
000.00 from the Plaintiff, Mark Gannon, and that by his
fraud and misconduct he has wrongfully deprived the
Plaintiff of the sum of $13,000.00, and should be held to
account to the said Plaintiff for the said sum of $13,000.00,
in addition to the sum of $5,000.00 earned by reason of the
use of the plaintiff’s money and wrongfully withheld from
the plaintiff.
It is therefore ordered, adjudged and decreed by the
Court that any agreement between the said Plaintiff, Mark
Gannon, and Defendant, W. R. Britton in the nature of a
mining partnership be and is hereby declared to be dis-
solved and that the Defendant W. R. Britton account to
the Plaintiff, Mark Gannon for the total amount of $18,-
000.00, and that the Plaintiff, Mark Gannon have and re-
cover the sum of $18,000.00 from the Defendant, W. R.
Britton, together with costs of this proceeding, and that he
have execution therefor.
It is further ordered, adjudged and decreed that the
injunction heretofore entered in this cause be and the same
is hereby dissolved by agreement of the plaintiff and de-
fendant Thomas S. Doran; that the bond heretofore filed
in this cause in connection with writ of injunction be and
the same is hereby released, canceled and discharged and
case is dismissed as to Thomas S. Doran with prejudice.
ENTER this 20 day of October, 1951
(Signed) Ward P. Holt
Judge
O. K.
(Sig.-d) Robert G. Burnside
Atty for dft. Thomas S. Doran.
[APPENDIX]
ENDORSED:
No. 47-1052. STATE OF ILLINOIS FAYETTE
COUNTY In The Circuit Court Mark Gannon, Plaintiff,
v. Thomas S. Doran, et al, Defendants. Decree. FILED
Oct 27 1951 Paul Houck Clerk of the Circuit Court
Fayette County, Illinois. Charles R. Myers Lawyer Van-
dalia, Illinois Chancery Record 63 page 452
STATE OF ILLINOIS, )
) SS.
COUNTY OF FAYETTE )
I, Paul Houck Clerk of the Circuit Court in and for
said County in the State aforesaid, do hereby certify the
foregoing to be a true, perfect and complete copy ot Placita,
Judges Docket Entries, Judgment Order, Judgment &
Execution Docket entry and Decree comforming Judg-
ment
In Case # 47-1052 Mark Gannon v. Thomas S. Doran et al
IN TESTIMONY WHEREOF, I have hereunto set my
hand and affixed the seal of said Court, at my office in
Vandalia this 16th day of November A. D. 1951
(Signed) Paul Houck Clerk.
(SEAL)
STATE OF ILLINOIS, )
) ss.
COUNTY OF Fayette )
I, James G. Burnside Judge of the Circuit Court, do
hereby certify that Paul Houck, whose name is subscribed
to the foregoing Certificate of Attestation, now is, and was
at the time of signing and sealing the same, Clerk of the
Circuit Court of Fayette County aforesaid, and keeper of
the Records and Seal thereof, duly elected and qualified
to office; that full faith and credit are and of right ought to
‘APPENDIX) .
be given to all his official acts as such in all Courts of
Record and elsewhere; and that his said attestation is in
due form of law, and by the proper officer.
Given under my hand and seal this 16th day of Novem-
ber A. D. 1951
(Signed) James G. Burnside
(SEAL)
STATE OF ILLINOIS, )
) SS.
COUNTY OF Fayette )
I, Paul Houck Clerk of the Circuit Court in and for said
County, in the State aforesaid, do hereby certify that
James G. Burnside whose genuine signature appears to
the foregoing certificate, was at the time of the signing the
same, Judge of the Circuit Court of Fayette County, Illinois
duly commissioned and qualified; that full faith and credit
are and of right ought to be given to all his official acts as
such in all Courts of Record and elsewhere.
IN TESTIMONY WHEREOF, I have hereunder set
my hand and affixed the seal of said Court, at my office in
Vandalia, illinois this 16th day of November A. D. 1951
(SEAL) (Signed) Paul Houck Clerk
EXHIBIT “A”
wniiiiiai
CAPPENDIX]
EXHIBIT 3
In THE District Court WITHIN AND FOR Pontotoc
County, OKLAHOMA
MARK Gannon, Plaintiff
Vv. No. 20,262
W. R. Britton, Defendant
PETITION
Comes now the plaintiff Mark Gannon, and for cause
of action against the defendant, W. R. Britton, alleges and
states:
1. That said plaintiff on the 29th day of September,
1951, by the consideration of the Circuit Court in and for
the County of Fayette, State of Illinois, in a cause therein
pending in which the said Mark Gannon was plaintiff and
the said W. R. Britton was defendant, at a duly authorized
term of said court begun on the 27th day of August, 1951,
and held at the City of Vandalia in said County, which
said court has full jurisdiction of the subject matter and
persons and parties, recovered a judgment against the
said W. R. Britton in the sum of $18,000.00, plaintiff’s debt
against said defendant, W. R. Britton; which said judg-
ment still remains in that court in full force and effect, in
no wise reversed or annulled, satisfied or set aside; that
said defendant, though often requested, has not paid said
judgment or sum of money, or any part thereof, to said
plaintiff. A duly authenticated, certified copy of said judg-
ment is filed herewith as a part hereof, marked Exhibit
“ F Naat
WHEREFORE, the said plaintiff prays judgment
against said defendant W. R. Britton, for the said sum of
money amounting to the sum of $18,000.00, together with
—
[APPENDIX)
interest thereon from September 29, 1951, at the rate of
6% per annum, and for all costs of this action.
MARK GANNON, Plaintiff
By McARTHUR & ORTON
By C. L. McArthur
His Attorneys
ENDORSEMENT ON PETITION:
Filed Feb. 21, 1952, and entered in Book 36 at Page 163.
ABE HOLLOWAY, COURT CLERK,
Pontotoc County, Okla.
By W. D. Abbott, Deputy.
EXHIBIT 4
In THE District Court WITHIN AND FoR Pontotoc CouNTy
STATE OF OKLAHOMA
MARK GANNON, Plaintiff,
v. No. 20,262
W. R. BRITTON, Defendant
ANSWER
Comes now the defendant, W. R. BRITTON, and for
answer to plaintiff's petition filed herein denies each and
every allegation therein set forth and demands strict proof
thereof.
1. Further answering, defendant asserts that he and
the plaintiff were at one time mining partners; that the
subject matter which is the basis of the purported judg-
ment plead by plaintiff herein involved partnership prop-
erty owned by both plaintiff and defendant; that after the
action was filed by plaintiff he advised the defendant,
W. R. Britton, that he was only seeking a remedy against
. Ae si eee ee vy Le ee ee ad — is
—xiii—
[APPENDIX]
Thomas S. Doran and against the First National Bank of
Vandalia and certain partnership property; that he lulled
this defendant, W. R. Britton, into inaction by advising him
to pay no attention to the suit and also advising him that
he was not seeking and would not take any personal
judgment against W. R. Britton; that said suit was filed in
September, 1947, and no further action was taken until the
year 1951 by the plaintiff; that in the meantime plaintiff,
Mark Gannon, made no effiort to dissolve their mining
partnership as provided by the laws of the State of Illinois
but continued at all times to lull this defendant, W. R.
Britton, into thinking and believing no judgment whatso-
ever would ever be taken in said cause against W. R.
Britton. That plaintiff, Mark Gannon, asserted that his
suit was pointed to obtaining judgment against Thomas S.
Doran, First National Bank of Vandalia and The General
Finance Corporation.
2. Further answering defendant would show that the
plaintiff, Mark Gannon, herein has purposely failed to file
a certified and authenticated transcript of all the plead-
ings in the suit filed in the Circuit Court of Vandalia,
Illinois, being styled Mark Gannon v. Thomas S. Doran,
W. R. Britton, d/b/a W. R. Britton Drilling Company,
First Nation ° Bank of Vandalia, and General Finance
Corporation, No. 47-1052; that the plaintiff, Mark Gannon,
has failed to file herein such authenticated transcript in
support of his petition in this cause in this Court.
3. That for all of these reasons your defendant, W. R.
Britton, did not employ an attorney in said cause. That
more than four (4) years after the filing of said suit the
plaintiff by fraud and imposition on the trial court took a
purported default judgment against this defendant, W. R.
Britton, contrary to all statements and agreements had
between them as mining partners; that by reason of the
false and frauduleni conduct on the part of plaintiff, Mark
Gannon, that said purported judgment sued upon herein
—xiv—
LAPPENDIX]
is wholly void on its face and of no force andieffect.. That
during the pendency of said suit that defendant did not
then and does not now owe Mark Gannon any sum what-
soever.
WHEREFORE, having fully answered defendant prays
that he go hence without costs.
Busby, Harrell & Trice
Attorneys for Defendant
ENDORSEMENT THEREON APPEARS:
Filed May 28, 1952, and entered in Book 36 at Page 163.
ABE HOLLOWAY, COURT CLERK,
Pontotoc County, Okla.,
By W. D. Abbott, Deputy.
EXHIBIT 5
In THE District CourT WITHIN AND FOR Pontotoc CouNTy
STATE oF OKLAHOMA
MARK GANNON, | Plaintiff,
v. No. 20,262
W. R. BRITTON, Defendant.
AMENDED ANSWER AND CROSS PETITION ANSWER
Comes now the Defendant, Roy Britton, and for this
amendment to his answer repleads and reaffirms each and
every allegation contained in his original answer filed
herein. He further alleges and states:
1. That the judgment rendered by the Fayette County
Indiana Circuit Court was obtained by fraud in the follow-
ing particulars:
That on or about the 10th day of July, 1946. one Spike
Gannon called Roy Britton, the defendant, to his bar and
RENTED RBI EWU UAT EIEN NEEL I SAE RE ee — >
Ge ae
—xv—
[APPENDIX]
gambling palace and gave to Roy Britton $13,000.00 in small
bills. For said sum of $13,000.00 they agreed that they
would enter into a mining partnership and that Spike
Gannon would receive 1/3 of the net profits and bear 1/3 of
the losses in Roy Britton’s drilling business. Gannon in-
sisted that Britton tell no one of the transaction and that
he, Gannon, be and remain a so-called “silent partner.”
That he, Gannon, was at that time under surveillance by
and in difficulty with the Federal Bureau of Internal
Revenue. Spike Gannon would take no receipt for the
$13,000.00 cash in small bills, because he did not wart any
records made showing the transaction. Some months later
he requested Roy Britton to sign a bill of sale of said drill-
ing rig to his brother, Mark Gannon, the plaintiff herein,
for Spike Gannon’s use and benefit, and for the $13,000.00
Spike Gannon paid the defendant and Roy Britton then
executed the bill of sale to Mark Gannon at Spike Gan-
non’s request. However, it was understood between them
that said Spike Gannon was the real party in interest and
the actual partner of Roy Britton, and not Mark Gannon,
the plaintiff herein, and that Mark Gannon’s name was
used in the place and stead of the name of Spike Gannon,
the real owner.
That at the time Spike Gannon bought the above
mentioned 1/3 interest with $13,000.00 in cash from Roy
Britton, he knew that there were certain mortgages on
the drilling rig and equipment. He had both actual and
constructive notice of this fact.
That after drilling certain oil wells which were not
commercial producers the partnership was no longer able
to make the payments which became due upon the mort-
gages above mentioned. The loan company therefore fore-
closed the mortgage and sold the partnership drilling
equipment.
That thereafter, on or about the 17th day of Novem-
ber, 1947, Spike Gannon approached Roy Britton and told
—xvi—
[APPENDIX]
Roy Britton he had conferred with his attorney and was
advised that due to a legal technicality the foreclosure had
not been valid against his (Gannon’s) interest, and he
asked Roy Britton to help his recover said interest. Spike
Gannon represented to Roy Britton that in order to effect
such a recovery, he Spike Gannon, using his brother
Mark’s name, had had to join Roy Britton as a defendant
together with the various mortgagees, in a suit which Spike
Gannon had already filed to recover the drilling equipment.
But he assured Roy Britton that there would be no judg-
ment taken against him except to dissolve the partnership
with Spike.
That thus lulled into a sense of security by the repre-
sentations of Spike Gannon, upon which Roy Britton relied,
Roy Britton made no effiort to defend against the above
mentioned lawsuit which was fraudulently filed in the
name of Spike Gannon’s brother, Mark Gannon, and al-
though Roy Britton was served with a summons on the
17th day of November, 1947, giving notice of said law suit
having been filed, he hired no attorney and took no steps
to defend himself because of the above mentioned repre-
sentations of Spike Gannon made after the filing of said
suit.
That thereafter on the 3rd day of February, 1951,
nearly three and one-half years after said lawsuit had
been instituted, and three years after Roy Britton had
moved to Ada, Oklahoma, to be a citizen and home-owner
in this community, the petition in said suit was amended
to seek the recovery of money from the defendant, Roy
Britton. The Petition was thus amended surreptitiously
and secretly and without notice to the defendant, Roy
Britton.
That thereafter on the 29th day of September, 1951,
the lawsuit came to trial without notice to the Defendant,
Roy Britton, and the attorney of the sham plaintiff, Mark
—xvii—
[APPENDIX]
Gannon, voluntarily dismissed the suit against all of the
other defendants, with prejudice, and fraudulently ob-
tained a judgment against the Defendant, Roy Britton,
for $18,000.00.
That there was no evidence taken in the determina-
tion of this cause, contrary to law and equity.
That the Defendant, Roy Britton, was never informed
nor had any knowledge of the progress of this case until
the sham Plaintiff, Mark Gannon, filed this present suit in
the District Court of Pontotoc County, Oklahoma, on the
21st day of February, 1952, nearly five and one-half years
after said suit was filed.
That the Defendant, Roy Britton, does not now owe
nor has he ever owed any money to the Plaintiff, Mark
Gannon.
That the sham Plaintiff, Mark Gannon, and his
brother, Spike Gannon, came into this court with unclean
hands by reason of the fact that they purposely and wil-
fully lured this Defendant, Roy Britton, into a judicial
trap.
That for all the above stated reasons the judgment
upon which the sham Plaintiff now seeks to recover is
wholly void on its face and is of no force and effect.
WHEREFORE, having fully answered, Defendant
prays that he go hence without costs, as to Plaintiff's as-
serted action.
CROSS PETITION
That the Defendant, Roy Britton, for his Cross Petition
and Motion to Make Additional Party Defendant herein
alleges and states:
1. That this defendant entered into a mining part-
nership with one Spike Gannon, the brother of the sham
—xviii—
CAPPENDIX]
plaintiff, Mark Gannon, on or about the 10th day of July,
1946.
2., That this defendant has never had any dealings
with the sham plaintiff, Mark Gannon, except as the agent
of his brother, Spike Gannon; that every action claimed
by the said Mark Gannon in his petition was done by the
said Mark Gannon as the agent of his brother, Spike Gan-
non.
3. That the said Spike Gannon should now be made
an additional party to the action as he is the true party to
this action. Now that this court should enter its order direct-
ing that the said Spike Gannon be permitted to be made
a party defendant and that he be substituted for the real
plaintiff herein, Mark Gannon.
4. That your defendant is entitled to have an account-
ing as between him and the said Spike Gannon and that had
it not been for the action of the said Spike Gannon acting
through his brother Mark and lulling this defendant into
believing that no action would be taken against him, this
defendant would have filed an answer and cross petition
against Spike Gannon, seeking a true accounting between
them as such partners.
5. That a true accounting between the plaintiff
herein, Mark Gannon, agent of Spike Gannon, would show
the following, to-wit: That between the time the above
mentioned partnership agreement was made and January
13, 1947, the same being the date that the property of the
said partnership was sold at foreclosure, certain debts were
due and owing by said partnership, in the following ap-
proximate amounts:
Payment on principal and interest of $34,000
from General Finance Corporation for
months of July, August, September and
October of 1946 ; $18,574.00
—xix—
{APPENDIX}
Service Charge on $34,000 loan from Gen-
eral Finance Corporation 1,300.00
Loss on three non-commercial wells ____._ 4,500.00
National Supply Company of Toledo, Ohio_.._ 7,700.00
Frank Manufacturing Company of Tulsa,
Oklahoma 8,000.00
Spencer Machine Company of Salem, IIli-
nois 2,000.00
Pioneer Machine and Tool Works... + 2,500.00
Miscellaneous debts 25,000.00
$61,574.00
6. That part of the above amounts have been paid by
the defendant, and that he is entitled to subrogation there-
fore.
7. That Spike Gannon is liable for his one-third share
of the above set-out partnership debt of approximately
$61,574.00, or approximately $20,758.00, as repayment for
those sums paid out by Roy Britton and as subrogation for
those sums for which Roy Britton may be legally liable.
8. That the exact amount of said partnership obliga-
tions will be set out at trial.
WHEREFORE, premises considered, this defendant
prays that the plaintiff take nothing by this action; that the
said Spike Gannon be made the real party defendant and
that said Spike Gannon be required to pay to this defend-
ant the sum of Twenty Thousand Seven Hundred Fifty
Eight Dollars ($20,758.00).
Or, in the alternative, this defendant prays that the
sham plaintiff, Mark Gannon, be declared the agent of
said Spike Gannon and that the sham plaintiff, in behalf of
his principal, Spike Gannon, be required to pay to this de-
fendant the sum of Twenty Thousand Seven Hundred
Fifty Eight ($20,758.00) Dollars.
[APPENDIX] 5
WHEREFORE, your defendant by way of answer and
cross petition prays this court to make Spike Gannon addi-
tional party defendant; that an accounting be then had be-
tween him and Spike Gannon and that he have judgment
against the said Spike Gannon for the sum of Twenty
Thousand Seven Hundred Fifty Eight ($20,758.00) Dol-
lars.
W. R. BRITTON
By his attorneys,
BUSBY, HARRELL & TRICE
By David Busby
ENDORSEMENT THEREON APPEARS:
Filed Dec. 29, 1952, and entered in Book 36 at Page 163.
ABE HOLLOWAY, COURT CLERK,
Pontotoc County, Okla.,
By Abe Holloway, Court Clerk.
EXHIBIT 6
In THE District Court WITHIN AND FOR Pontoroc
County, OKLAHOMA
Mark Gannon, Plaintiff
v. No. 20,262
W. R. Britton, Defendant
MOTION TO STRIKE
I.
Comes now the plaintiff, Mark Gannon, and moves the
court to strike the defendant’s amended answer and cross
petition filed herein on December 29, 1952, for the reason
that the allegations in said answer consist only of irrelevant
and redundant matter and refer to matters and alleged
—~ Pe.
[APPENDIX1
facts which took place prior to the filing of the original
case in the Circuit Court of Fayette County, Illinois, and
before the rendition of judgment by said court, the said
Circuit Court of Fayette County, Illinois, having juris-
diction of said cause of action and any matters set up in
defendant’s amended answer and cross petition which
may have constituted any defense to plaintiff’s original
cause of action could and should have been set up in said
original action in the Circuit Court of Fayette County,
Illinois, and that said judgment of said Illinois Court is
now final and is entitled to full faith and credit in this
court.
II.
Plaintiff further moves the court to strike the cross
petition set out in defendant’s amended answer filed De-
cember 29, 1952, for the reason that the matters and
alleged facts therein contained are irrelevant and re-
dundant and do not constitute any defense to the original
action of the plaintiff filed in the Circuit Court of Fayette
County, Illinois, should have been set up and litigated in
the said Illinois Court, and the said matters set out in said
cross petition do not constitute any proper or valid defense
to the petition of plaintiff filed herein.
III.
Plaintiff further moves the court to strike from the
original answer of the defendant filed herein on May 28,
1952, all of said answer except the first unnumbered para-
graph thereof constituting a general denial, and said plain-
tiff states that paragraphs numbered 1, 2 and 3, of said
original answer constitute only irrelevant and redundant
matter and do not constitute any defense to the petition
of the plaintiff filed herein.
McARTHUR & ORTON
By C. L. McArthur
Attorneys for Plaintiff
—xxii—
[APPENDIX]
ENDORSEMENT THEREON APPEARS:
Filed Jan. 2, 1953, and entered in Book 36 at page 163.
ABE HOLLOWAY, COURT CLERK,
Pontotoc County, Okla.,
By W. D. Abbott, Deputy.
EXHIBIT 7
In THE District Court WITHIN AND FOR Pontoroc
County, OKLAHOMA
Mark Gannon, Plaintiff
Vv. No. 20,262
W. R. Britton, Defendant
ORDER SUSTAINING MOTION TO STRIKE
Now on this 4th day of February, 1953, the plaintiff
appearing by his attorneys, McArthur and Orton, and the
defendant by his attorney, David Busby, this matter having
heretofore been heard by the court and taken under ad-
visement, the court having fully considered the said mat-
ter and the argument of counsel thereon, finds that said
motion should be allowed and sustained.
It is therefore by the court ordered, adjudged and
decreed the motion of plaintiff to strike all of their answer,
amended answer and cross petition of the defendant except
the general denial therein contained is hereby sustained
and said answer, amended answer and cross petition ex-
cept the general denial therein contained is ordered
stricken from said pleadings, to which order of the court
the defendant excepts and exceptions are by the court
allowed.
i
i
i
3
i
)
‘
|
— Re i ee a FEE NA TE
RET TR ANTS
—xxiii—
C[APPENDIX}
Upon request of counsel for the defendant, defendant
is allowed five days from this date within which to file a
second amended answer.
(Signed) John Boyce McKeel
Judge
ENDORSEMENTS THEREON APPEAR:
Filed Feb. 6, 1953, and entered in Book 36 at Page 136.
ABE HOLLOWAY, COURT CLERK,
Pontotoc Couny, Okla.,
By Billye Cozad, Court Clerk.
RECORDED: Journal 68, at Page 74.
EXHIBIT 8
In THE District Court WITHIN AND FoR Pontotoc CouNTYy
STATE oF OKLAHOMA
Mark Gannon, Plaintiff,
v. No. 20,262
W. R. Britton, Defendant.
SECOND AMENDED ANSWER ;
Comes now the defendant, W. R. Britton, and for
answer to the plaintiff's petition filed herein denies each
and every allegation set forth and demands strict proof
thereof.
Further answering, defendant alleges and states that
the default judgment which was relied upon by the plain-
tiff in prosecuting this cause was rendered against the de-
fendant by a Court which had no jurisdiction of the per-
son of the defendant or of the subject matter involved for
the following reasons, to-wit:
1. The said judgment was taken on account without
any evidence to prove the existence or amount of said ac-
—xxiv—
[APPENDIX]
2. The said judgment is null and void and without
force and effect for the reason that jurisdiction was as-
sumed by the Circuit Court of Fayette County, Illinois,
as a result of extraneous and extrinsic fraud perpetrated
upon the defendant in the following manner, to-wit: That
the original petition filed therein on the 27th day of Decem-
ber, 1947, sought a judgment against defendant only upon
any interest the defendant might have in a certain FWD
truck; that three and one-half years later on February 3,
1951, said petition was amended without notice to the de-
fendant to ask for a money judgment. That the defendant
had not hired an attorney to defend this case because the
plaintiff, or his agent, had represented to the defendant
that no judgment was sought against him, but that the
defendant was merely to be a technical party defendant in
that cause. Thus lulled into a sense of security by the
plaintiff and acting thereon, defendant hired no attorney
to represent him in this cause and moved to Ada, Okla-
homa. That thereafter, on the 29th day of September,
1951, four years after this suit had been instituted in
Vandalia, Illinois, and after the suit had been dismissed
‘ as to all other parties, default judgment was taken against
3 the defendant in the sum of $18,000.90 without any notice
; to defendant; that said cause was coming on for trial.
That the defendant was never informed ahd had no knowl-
edge of the progress or status of this case until the plaintiff,
Mark Gannon, filed this present suit in the District Court
‘ of Pontotoc County, on the 21st day of February, 1952,
nearly five and one-half years after the said suit was filed.
That the defendant does not now owe nor has he ever owed
any money to the plaintiff, Mark Gannon; that the Circuit
Court of Fayette County, Illinois, assumed jurisdiction of
this cause because of the preconceived, concerted and
fraudulent actions of the plaintiff and his brother, Spike
Gannon.
3. That the judgment of $18,000.00 included the sum
of $5,000.00 which was not prayed for in either the plain-
€
wl
y
— op SOMERS EN I SARS. RAST TSENG TENS REL ROL IEE SR SST FILE Se ee
PTS SN ELS anid "
ee yee 7
—xxv—
C[APPENDIY1]
tiff’s original petition nor in the plaintiff's amended peti-
tion and consequently, said judgment was rendered with-
out jurisdiction.
BUSBY, HARRELL AND TRICE
BY: David Busby
Attorneys for Defendant,
W. R. Britton.
ENDORSEMENT THEREON APPEARS:
Filed Feb. 14, 1953, and entered in Book 36 at Page 136.
ABE HOLLOWAY, COURT CLERK,
Pontotoc County, Okla.,
By Faye White, Deputy.
EXHIBIT 9
IN THE District Court WITHIN AND FoR Pontotoc County
STATE OF OKLAHOMA
Mark Gannon, Plaintiff
Vv. No. 20262
W. R. Britton, Defendant
MOTION TO STRIKE
Comes now the plaintiff, Mark Gannon, and moves the
Court to strike all of defendant’s second amended answer
filed herein on the 14th day of February, 1953, except the
first three lines thereof constituting a general denial, for
the reason that said amended answer consists only of ir-
relevant and redundant matter and alleges facts which
do not constitute any defense to the petition of plaintiff
filed herein, and for the further reason that said amended
answer sets up as defense only such matters as were set
out in defendant’s first amended answer; that no new
Rear. PLS NY TI LER I Ea
—xxvi—
[APPENDIX)
defenses are contained therein, that the matters set out
in said portion of said amended answer have already been
ruled on by this Court and stricken for the reason that
they do not set out any defense to the cause of action by
McArthur & Orton
By C. L. McArthur
Attorneys for Plaintiff
Mark Gannon
ENDORSEMENT THEREON APPEARS:
Filed Feb. 19, 1953, and entered in Book 36 at Page 163.
ABE HOLLOWAY, COURT CLERK,
Pontotoc County, Okla.,
By W. D. Abbott, Deputy.
EXHIBIT 10
In THE District CourT WITHIN AND FOR Pontotoc County
STATE OF OKLAHOMA
Mark Gannon, Plaintiff,
Vv. No. 20262
W. R. Britton, Defendant.
ORDER SUSTAINING MOTION TO STRIKE
Comes now this 4th day of March, 1953, this matter
coming on to be heard on the motion of Plaintiff to strike
all of the Defendant’s second amended answer except the
first three lines thereof constituting a general denial, the
Plaintiff appearing by his attorneys, McArthur and Orton,
and the Defendant appearing by his attorneys, Busby,
Stanfield, Busby and Deaton, and the court having heard
said motion and being fully advised in the premises, finds
that said motion should be sustained.
SPREE N IS PET MET RSL ILE II EP LR, oneal
|
a aiid
—xxvii—
[APPENDIX}
IT IS THEREFORE BY THE COURT ORDERED,
ADJUDGED AND DECREED that all of that portion of De-
fendant’s second amended answer except the first three
lines thereof constituting a general denial, be, and the
same is hereby stricken, to which ruling of the court the
defendant excepts and exceptions are by the court al-
lowed, and said cause is set for trial on March 18, 1953,
at 10:00 o’clock a.m., 1953.
(Signed) John Boyce McKeel
Judge
O. K. as to form:
Busby, Stanfield, Busby & Deaton
By David Busby
ENDORSEMENTS THEREON APPEAR:
Filed Mar. 5, 1953, and entered in Book 36 at Page 163.
ABE HOLLOWAY, COURT CLERK,
Pontotoc County, Okla.,
By Billye Cozad, Deputy.
RECORDED: Journal 68, at Page 156.
EXHIBIT 11
IN THE District Court or Pontotoc County,
STATE OF OKLAHOMA
Mark Gannon, Plaintiff,
v. No. 20,262
W. R. Britton, Defendant.
TRANSCRIPT OF TESTIMONY
AND PROCEEDINGS AT TRIAL
The above styled and numbered cause of action came
on for trial before the Honorable John Boyce McKeel,
District Judge, on May 4, 1953, and the following testimony
was adduced and proceedings had, as follows, to-wit:
—xxviii—
[APPENDIX]
APPEARANCES: The Plaintiff being represented by
Perry L.
his Attorneys, McArthur & Orton, of Ada, Okla-
homa, by C. L. McArthur, a Member of said Firm.
The Defendant, W. R. Britton, appearing in per-
son, and being represented by his attorneys,
Busby, Stanfield, Busby & Deaton, of Ada, Okla-
homa, by David Busby and W. V. Stanfield,
Members of said Firm.
Northcutt, ... Reporter
By Mr. McArthur: If the Court please, I believe there
is an order showing that this case is set for the
Fifth and I believe that the record should show
that it is advanced and reset for today for trial.
By the Court: All right, let it so show.
By Mr. Busby: For the purpose of the record. Comes
now, the Defendant, and suggests to the Court that
the defendant in this case has plead for his de-
fense that fraud was perpetrated by the Plaintiff
in obtaining the foreign judgment in question.
And that the defense of fraud is a proper defense
under the Oklahoma Statutes and decisions, and
since it is a proper defense the defendant is en-
titled to a jury trial to pass upon the question of
fraud. The defendant, therefore, moves that this
case be stricken from the non-jury docket and set
on the jury docket.
By the Court: Well, under what I think is the law—
I may be all “Wet” about this matter, but from
the way we have been proceeding and I have
changed my mind about it, I think I will have
to overrule you.
By Mr. Busby: To which ruling of the Court the
PK, RRL LNT ENTREES IN SONATE DIET RY MF RES
defendant excepts.
PLAT RS Ta eS
—XxXix—-
{APPENDIX]
By the Court: Exceptions allowed.
By Mr. Busby: Does the Court make a ruling that
By
By
By
By
By
By
By
By
the Court will not permit the defendant to a trial
by a jury upon the issue of fraud? The Defend-
ant suggests to the Court, and moves the Court,
that a jury be called and permitted to sit in cop-
nection with this cause and permitted to hear
all the testimony of the defendant’s purported
defense of fraud, and that the jury be permitted
to act in an advisory capacity to the Court, so
that the Court will indirectly, at least, have the
benefit of the jury as to, whether or not, the de-
fendant has sustained the allegations of fraud as
plead in his answer.
the Court: Well, that will be overruled.
Mr. Busby: Exception.
the Court: My understanding of the issues here
is that the only defense that you have is as to
jurisdiction.
Mr. Busby: Yes, sir, that is what the Court—
the Court: Of course, that has already been
argued out on the motion.
Mr. Busby: Well, yes, sir, it has been, and we
intend to make a record here.
the Court: Yes, sir. I don’t want to keep you from
making a record. All right, I am ready.
Mr. McArthur: If the court please, we wish to
introduce into evidence the authenticated copy of
the judgment—the original authenticated copy
that is attached to the petition filed herein—As
Exhibit “A”, which shows the judgment taken by
him in the Circuit Court of Fayette County,
Illinois, on the twenty-ninth of September, 1951;
—XXxX—
[APPENDIX]
and which is properly authenticated by the Clerk
of that Court and by the Judge of that circuit.
We now offer that in evidence as the Plaintiff's
Exhibit One.
By Mr. Busby: We object to the introduction of this
into evidence on the grounds that, under the
Court’s ruling, we will not be permitted to rebut
the evidence submitted by the plaintiff.
By the Court: Overruled, let it be admitted.
By Mr. Busby: Exception.
Reporter’s Note: Which said Plaintiff’s Exshibit One is
hereinafter copied in full and incorporated herein and
made a part of the record hereof and may be found be-
ginning at Page 10 of this Case-made.
By Mr. McArthur: We offer further, an authenti-
cated copy of the Original Complaint in Equity,
filed therein, as our Exhibit Two.
By the Court: Any objections?
By Mr. Busby: Yes, sir, we object to it for the same
reasons as stated before.
By the Court: All right, overruled.
By Mr. Busby: Exception.
Reporter’s Note: Which said Plaintiff’s Exhibit Two
is hereinafter copied in full, incorporated herein and made
a part of the record hereof and may be found copied herein
beginning at Page 81 of this Case-made.
By Mr. McArthur: Now, if the Court please, I also
wish to offer in evidence authenticated copies of
proceedings in the Circuit Court of Fayette
County, Illinois, in an action Numbered 47-1052,
being the alias request for Summons; Circuit
Court Summons and return thereon; Affidavit
|
BPI IOS EIN TERT NEE LE LOL OEE ALEVE LIED oe
RRA TEI,
—xxxi—
[APPENDIX]
as to Military Service; Motion for Leave to File
Amended Complaint; Affidavit of Mailing, copy
of the notice thereof, and the Notice; the Amended
Complaint—
By Mr. Busby: Haven’t you got that over here, Mr.
McArthur? .
By Mr. McArthur: No, that is the original Com-
plaint.
By Mr. Busby: I see.
By Mr. McArthur: —with the exhibits thereto; and
the authentication thereof by the Clerk of the
Circuit Court of Fayette County, Illinois, and of
the Judge of said circuit, as the Plaintiff's Exhibit
Three.
By the Court: All right, let it be admitted.
Reporter’s Note: Which said Plaintiff’s Exhibit Three
is hereinafter copied in full, incorporated herein and made
a part of the record hereof and may be found copied herein
in full beginning at Page 109 of this Case-made.
By Mr. McArthur: The Plaintiff Rests.
By Mr. Busby: We object to the introduction of such
testimony and take exceptions to the admission
thereof for the reasons stated above.
By the Court: All right, objection is overruled.
By Mr. Busby: Exception. |
$ By the Court: Exceptions allowed.
By Mr. Busby: Comes now the defendant and de-
murs to the evidence as presented by the Plain-
tiff as it is insufficient and is not responsive to
the Answer filed by the Defendant.
By the Court: Overruled.
— SIONAL AES TT EAL
: —xxxii—
[APPENDIX]
By Mr. Busby: Exception.
By Mr. Busby: Now, I would like to call Mr. W. R.
Britton.
By the Court: All right.
W. R. BRITTON,
the Defendant herein, after having been first duly sworn,
upon oath, to tell the truth, the whole truth and nothing
but the truth, thereupon took the witness stand to testify
in his own behalf and testified, as follows, to-wit:
Direct Examination
By Mr. Busby:
Q. Will you tell the Court your name and address,
- please?
A. ’ W. R. Britton; I live on the Allen road, a mile
east of town.
Q. What is your business, Mr. Britton?
A. Oil business.
By Mr. Busby: Now, I have a series of questions here
to ask Mr. Britton and the indications are that
Mr. McArthur will object to these questions, and
we will handle it however the Court wants to. If
the Court wishes, I will dictate what I expect the
witness to say in the record—
By the Court: Well, of course, heretofore I have al-
ready heard the question of jurisdiction on previ-
ous motions.
By Mr. Busby: Yes, sir.
By the Court: And the court’s idea was at that time
that the only grounds that the Decree in Illinois
could be set aside would be on jurisdictional
5 GANG LEGA. ARENDS PEE LI TI YN Se SIR LTTE Uo ee
POR GASH EIT YS
—xxxiii—
[APPENDIX]
grounds, but I don’t want to do anything to keep
you from making your record, and so you ask
him questions. And, Mr. Britton, if you will hesi-
tate a little bit after he asks the question so as
to give them a chance to object to it, I think we
can make your record that way.
By Mr. Busby: Yes, sir.
By the Witness: Yes, sir.
Q.
Did you, on or about the tenth day of July, 1946,
have a business transaction with one, W. R. or
“Spike” Gannon?
By Mr. McArthur: We object to that, if the Court
please, as incompetent, irrelevant and immaterial;
the transaction having been reduced to judgment
and the authenticated judgment having been in-
troduced here in this case.
By the Court: Overruled, he can answer that.
By Mr. McArthur: Exception.
A.
Q.
Yes.
Describe that transaction, Mr. Britton?
By Mr. McArthur: Now, we object to that, if the
Court please, as an attempt to go into the transac-
tions which led up to the Judgment.
By the Court: I think so, and the objection will be
sustained, unless you have some evidence towards
the jurisdiction of that court up there—in other
words, it is my idea and my understanding of the
law, that the only thing that you can go into
here would be the jurisdiction of the court up
there. That your proper remedy would be to go
back to Illinois.
By Mr. Stanfield: We understand the Court’s position
bw AT ae tng
but we want it for the purpose of the record.
RSE ONT TA TEN aT SS be et eM adh
—xxxiv—
[APPENDIX]
By the Court: You want to make your record—All
right.
By Mr. Stanfield: The objection was sustained, and
to which the defendant excepts, and now you ex-
pect his answer to be: Now, dictate it (Directed
to Mr. Busby)
By Mr. Busby: The Defendant expects Mr. Britton’s
answer to be that he had known “Spike” or W. R. .
Gannon for some time; that Gannon had called
him and asked him to come to his, Gannon’s,
saloon and that Gannon wanted to make a deal
which they had talked over the day before. That
it was at about 9:30 at night on the tenth day
of July, 1946; that Mr. Britton had driven to
Rock Island, Illinois and that Gannon—that is,
Roy Gannon, had told him that he would buy a
third interest in Britton’s drilling business. Brit-
ton had about sixty-five thousand dollars worth
of equipment with about a twenty thousand dol-
lar mortgage on it, and Gannon said he would buy
a third interest in Britton’s drilling business for
fifteen thousand dollars, and that was agreed to.
That Mr. Gannon went to his upstairs room or
office and got an envelope with small bills in it
to about thirteen thousand dollars—there were
10’s, 20’s and about fifteen hundred one-dollar
bills, all cash. Mr. Britton offered to give him a
receipt for this money but Mr. Gannon refused
to take the receipt. Mr. Gannon told him that he
was in trouble with the Federal Bureau of In-
ternal Revenue and that he had made a lot of cash,
money, on gambling and a string of slot machines
and devices and “Black market”, and that he
didn’t want any cash record, or receipt, of the
transaction. He said that he didn’t want his name
involved as a record owner of the rig and equip-
Pe a ee
Sa
-~ wei tik.
ee te eT. On ee ae
were —
Q.
—xxxv—
[APPENDIX]
ment and said that he wanted only to be a silent
partner in the business and that was agreeable
with Mr. Britton.
Now, Mr. Britton, this cause of action or in this
cause of action Mr. Gannon, or, rather, Mr. “Spike”
Gannon’s brother is seeking to recover eighteen
thousand dollars against you, that is five thousand
more than he gave you in cash, was there any
further agreement?
By Mr. McArthur: We object to that, if the Court
please, as an attempt to go into the merits of the
case back of the judgment that was rendered by
the court in Illinois.
By the Court: Objection sustained.
By Mr. Busby: Exception. And for the purpose of the
record, we expect the answer to be that there was
a further*agreement; that it was agreed that Mr.
Gannon was to share one-third of whatever profit
the rig made and Mr. Britton was to have two-
thirds; that Mr. Britton told him that night, the
tenth of July, 1946, that they could probably ex-
pect to make about three thousand dollars a well
and that in that case about a thousand dollars of
it would be Mr. Gannon’s if that sum were made.
When Mr. Britton reminded him later that he had
only given Mr. Britton thirteen thousand dollars
instead of the fifteen thousand. agreed on, Mr.
Gannon said that he would let the profits of the
wells apply on the other two thousand dollars
until such time as the fifteen thousand was com-
pletely paid, before Mr. Gannon started taking
any profits. We expect him to testify that actually,
from that point on, no profits were made by the
drilling company, or partnership; that five wells
were drilled and three of them were dry and
—xxxvi—
[APPENDIX]
the other two weren’t much good; that the part-
nership became unable to pay the installments on
the mortgage and the rig and equipment were
foreclosed.
Now, Mr. Britton, this case is filed in the name of
“Mark Gannon” what is the relationship with
Mark Gannon as it refers to this transaction?
By Mr. McArthur: We object to that, if the court
please, as an attempt to go behind the judgmeni
which was rendered by the court in Illinois and
into the merits of the case.
By the Court: Sustained.
By Mr. Busby: Exception. And if the witness were
Q.
permitted to testify we expect the witness to state
that “Spike” Gannon said that he didn’t want his
name involved as a record owner of the rig and
truck and said that he wanted to be a silent part-
ner in the business; that “Spike” Gannon re-
mained the only silent partner; that about the
month of December, 1946—six months after Gan-
non bought into the partnership—Roy Gannon
had Mr. Britton sign a bill of sale placing the one-
third interest in his brother’s name, that is, in
Mark Gannon’s name. That “Spike” Gannen had
Mr. Britton to place the one-third interest in
Mark’s name but it was actually for the use and
benefit of “Spike” Gannon, and it was understood
by both parties that that was the case. That Mark
Gannon has never, actually, had any interest in
the business, and that Mark Gannon has never
been a partner with Mr. Britton.
Now, Mr. Britton, was this bill of sale to Mark
Gannon given before or after a mortgage was
made on the rig and equipment of the partner-
ship, and explain that situation to the Court?
Nt ERT eae ee
—xxxvii—
(APPENDIX)
By Mr. McArthur: We object to that, if the Court
please, as an attempt to go behind the judgment
and into the merits of the case.
By the Court: Sustained.
By Mr. Busby: Exception. And we expect the answer
Q.
to be that the bill of sale was made to Mark
Gannon after the last mortgage had been made on
the rig and that “Spike” Gannon knew the prop-
erty had been mortgaged, he knew the partner-
ship was in debt. That he had explained this to
“Spike” Gannon and that it, also, was a matter
of public record in three counties. That the rig
was finally sold for the mortgage at auction in
January, 1947.
Now, Mr. Britton, when was the next time you
heard anything about the rig?
By Mr. McArthur: We object to that, if the Court
please, as an attempt to go behind WPivdement
and into the merits of the case.
By the Court: Sustained.
By Mr. Busby: Exception. And we expect the answer
of the witness to be that in November of the next
year, that would be 1947, “Spike” Gannon and his
attorney came to see Mr. Britton in Tuscola,
Illinois, and “Spike” Gannon told Mr. Britton that
they might be able to get the truck back, at least,
and perhaps, even, the rig; that Gannon—“Spike”
Gannon, that is—said that they had gone into
court to “Cloud” the title to the equipment and
that they could use technicalities to salvage some-
thing out of it. “Spike” Gannon told Mr. Britton
that he had made Mr. Britton a party to the suit
but that insofar as Mr. Britton was concerned
it was a friendly suit; that he hadn't sued Mr.
Britton for any money and that he was seeking
—xxxviii—
[APPENDIX]
mainly to get a certain truc« back and that Mr.
Britton didn’t need to worry about any judg-
ment. That Mr. Gannon told Mr. Britton that
he wanted Britton to “play ball with him” in help-
ing Gannon to get the rig or truck back; that
Mr. Britton told Mr. Gannon that it looked like
that they had just gambled and lost and that the
foreclosure was good but that anything that
Britton could do to help him, without saying any-
thing that wasn’t true, he certainly would be glad
to do it; that Britton further told him that he
was going to Oklahoma and forget the whole
matter but for Gannon to call on Britton if he
needed help. Gannon stated that he wouldn’t need
Britton’s help and that he would take care of
Britton’s interest and Britton need not to worry
about the lawsuit because Britton was only a
technical party to it. After this, Mr. Britton would
be expected to testify that he came on back to
Oklahoma and heard no more about it.
Q. Were you served with a summons in the suit
above referred to?
By Mr. McArthur: No objection.
Yes.
When were you served with that summons, Mr.
Britton?
I don’t remember what day.
Was it the day you met him there in Tuscola and
he told you not to worry?
Yes—it was that morning and I met him that
afternon, but I don’t know what day that was.
Did you cooperate with him that day by giving
him a sworn statement relative to the mortgage
and matters?
% Gs Ses
—xxxix—
{APPENDIX}
A. Yes. ” iss
Q. What notice were you thereafter served with con-
cerning the status of the case, Mr. Britton?
By Mr. McArthur: We object to that as incompetent,
irrelevant and immaterial.
By the Court: Overruled.
By Mr. McArthur: Exception.
Q. What notice were you thereafter served with—
any?
A. None.
Q. When did you first know anything about the status
of this case, Mr. Britton?
By Mr. McArthur: We object to that, if the Court
please, the judgment speaks for itself and it is an
attempt to go behind that judgment.
By the Court: That will be sustained.
By Mr. Busby: To which the defendant excepts and
expects the answer to be that Mr. Britton didn’t
hear a thing about the case until the twenty-first
day of February, 1952. when this case was filed
here in Ada, Oklahoma—more than five years
after the interview with “Spike” Gannon above
referred to.
Q. Did you receive any notice that the petition had
been changed claiming that you owed Mark Gan-
non money?
By Mr. McArthur: We object to that, if the Court
please, as incompetent, irrelevant and immaterial,
and an attempt to go behind the judgment in the
case—the judgment, on its face, shows that the
court had jurisdiction.
—xl—
[APPENDIX]
By the Court: Sustained.
By Mr. Busby: To which the Defendant excepts and
Q.
expects the answer to be that he received no
notice that the petition had been changed.
Did you hire a lawyer in Illinois to protect your
interest in that suit up there?
By Mr. McArthur: We object to that as incompetent,
irrelevant and immaterial; he was served with
summons.
By the Court: Sustained.
By Mr. Busby: To which the defendant excepts, and
Q.
expects the answer to be that he hired no lawyer
in Illinois because “Spike” Gannon had said that
he, Britton, wouldn’t need a lawyer and told
Britton that his own lawyer, that is, Gannon’s
own lawyer would take care of Mr. Britton; that
he told Mr. Britton to forget about the case; that
Mr. Britton had on several occasions used various
lawyers in Illinois in connection with his business
and that he would have gone to a lawyer in con-
nection with the matter had it not been for the
representations of “Spike” Gannon that there
would be no judgment taken against him per-
sonally.
How much equity did you have in your rig and
equipment up there?
By Mr. McArthur: We object to that, if the Court
please, as incompetent, irrelevant and immaterial.
By the Court: Sustained.
By Mr. Busby: Note our exceptions. And we expect
the answer to be that the rig and equipment was
worth about sixty-five thousand dollars; that
there was a twenty-thousand-dollar mortgage on
Q.
—xli—
(APPENDIX)
the equipment at the time the deal was made with
“Spike” Gannon; that fifteen thousand dollars
represented a fair one-third part of the equity
which Mr. Britton had in the rig.
What has been the status of this partnership, the
financial status of this partnership, since the rig
was—or, rather, since the deal was made with
Mr. Gannon?
By Mr. McArthur: We object to that, if the Court
please, as incompetent, irrelevant and immaterial,
and an attempt to go into the merits of the case
and behind the judgment.
By the Court: Sustained.
By Mr. Busby: To which the defendant excepts and
expects the answer to be that the partnership
went completely broke, that it owed debts other
than the mortgage which was on the equipment
previous to the deal—now, let’s get that straight.
That it incurred debts after the partnership was
formed, in addition to the mortgage debt of twenty
thousand dollars which was already on it when
the partnership was formed; that debts were in-
curred with several oil field supply houses; that
debts were owed to the National Supply Company
of Toledo, Ohio of nearly eight thousand dollars;
and to the Franks Manufacturing Company of
Tulsa, Oklahoma, of about eight thousand dollars,
and about forty thousand dollars in all. That Mr.
Britton has personally made most of these debts
good, that is, he has paid them off, except for a few
thousand dollars which the partnership still owes,
and that Mr. Gannon has not paid any of this
amount. et
Have you seen or talked to “Spike” Gannon since
this suit was instituted in Illinois?
—_—
[APPENDIX]
By Mr. McArthur: We object to that, if the Court
please, as incompetent, irrelevant and immaterial;
it couldn’t serve: for any purpose except an at-
tempt to go behind the judgment.
By the Court: Sustaiined.
By Mr. Busby: To which the defendant excepts and
expects the answer to be that Mr. Britton saw
“Spike” Gannon. in Rock Island, Illinois, at the
Armstrong Hote:l in the summer of 1951, three
or four months before this judgment was taken
in Illinois, and tlhat Mr. Gannon told Mr. Britton
that he had nothing to worry about in the lawsuit.
Q. Did Mr. Gannon ever communicate with you re-
garding the judgment in Illinois at any time—
strike that. Did Mr. Gannon ever communicate
with you regardiing this case from the time it was
first filed in Illinios to the time that you were
served with a petition in this county—or, rather—
with a summons in this county, seeking to collect
the Illinois judgment?
By Mr. McArthur: We object to that as incompetent,
irrelevant and iimmaterial; it couldn’t affect the
judgment taken in Illinois.
By the Court: Sustained.
“By Mr. Busby: To which the defendant excepts and
expects the answer to be that neither “Spike”
Gannon nor his brother, Mark, at any time ever
communicated with him by mail or otherwise
regarding this judgment from the time it was
first filed in Illinois until the time the summons
was issued in Pontotoc County, except as re-
ferred to in the last question and answer.
Q.
Mr. Britton, did you ever have any contact or
make any contract with the plaintiff in this suit,
eee ALPERT LOTT se eos seme ech itt a a ‘
—
[APPENDIX]
Mark Gannon? Did you ever have any contact or
make any contract with the plaintiff in this suit,
Mark Gannon?
By Mr. McArthur: We object to that as incompetent,
irrelevant and immaterial, and is an attempt to
go behind the judgment.
By the Court: Sustained.
By Mr. Busby: To which the defendant excepts and
states that he expects the answer to be that Mr.
Britton never had any contact with, or contract
with, or financial dealings with, Mark Gannon,
the plaintiff in this case. That is all.
By the Court: Do you have any questions?
By Mr. McArthur: No.
By the Court: that is all, Mr. Britton.
Witness excused. “a
By Mr. McArthur: For the purpose of the defendant
making such record as he wants, I will state that
I have the original statement that he referred to,
and also transcript of the testimony taken at the
trial. I do not think that they are relevant or
material under the pleadings in this case but if
the defendant wishes to use it to make his record
and offer I will let him use these that I have.
MARGARET CAROL REAGAN BRITTON,
after having been first duly sworn, upon oath, to tell the
truth, the whole truth and nothing but the truth, was the
next witness produced on behalf of the Defendant, and
testified as follows, to-wit:
Direct Examination
By Mr. Busby:
—xliy—
CAPPENDIX]
> O& Pp
2 >
A.
Q.
Would you state your name and address?
Margaret Carol Reagan Britton.
Where do you live, Mrs. Britton?
I live on the Allen Highway, about a mile east of
town.
Are you the wife of W. R. Britton?
Yes, sir.
Were you connected with the Britton Drilling
Company during the period in which this cause of
action arose first?
By Mr. McArthur: We object to that, if the Court
please, as incompetent, irrelevant and immaterial,
and could only serve the purpose of going back
of the judgment rendered in the Illinois court.
By the Court: What was that question—was the ques-
tion: Whether or not she was connected with
the W. R. Britton Drilling Company?
By Mr. Busby: Yes, sir.
By the Court: Objection overruled.
By Mr. McArthv= Exception.
Why, yes, sir, I was bookkeeper for them.
Now, Mrs. Brutton, would you tell us the relation-
ship between your husband and “Spike” Gannon,
and. if you can, between your husband and Mark
Gannon, the Plaintiff in this case, as relates to
their business affairs?
By Mr. McArthur: We object to that, if the Court
please, as incompetent, irrelevant and immaterial,
and an attempt to go behind the judgment ren-
dered in the Illinois court.
—xlyv—
[APPENDIX]
By the Court: Objection sustained.
By Mr. Busby: To which the defendant excepts, and
Q.
we expect the answer to be that she worked
closely with the affairs of the partnership and as
an employe thereof regularly paid and that she
knew that “Spike” Gannon had bought a one-
third interest in the partnership and that the
books were set up to reflect this; that on the
seventeenth day of November, 1947 she was with
her husband at Tuscola, Illinois, in connection
with her employment as bookkeeper, that Mr.
Gannon, that is, “Spike” Gannon, and his at-
torney came to see Mr. Britton and herself and
that Mr. Gannon said that he had figured out a
way to get around the foreclosure of the partner-
ship rig and truck and that he could recover some-
thing out of it for himself, at least, and that he
had tied up the rig with a suit against the mort-
gage company; that he told them that Britton had
been made a defendant in the suit but that he
need not worry about it because it was a friendly
suit insofar as he was concerned, and that Britton
was only a technical party to the suit; that the
Brittons could forget about the suit. That Mr.
Britton told Gannon he would help him all he
could but that he wouldn’t lie for him. That Gan-
non told Mr. Britton that the truck had been de-
scribed wrong in the mortgage and that he, Gan-
non, could get the truck back, anyway, he thought. -
Now, after the foreclosure what was the financial
status Of you and your husband, Mrs. Britton?
By Mr. McArthur: We object to that as incompetent,
irrelevant and immaterial.
By the Court: Sustained.
—xlvi—
[APPENDIX]
Q.
Q.
By Mr. Busby: To which the defendant excepts and
expects the answer to be that as bookkeeper she
can report that they were completely broke, didn’t
have any money at all—owed many debts in ad-
dition to the mortgage on the rig, in approxi-
mately the sum of forty thousand dollars; that
most of that has been paid. That most of the part-
nership debts incurred after Mr. Gannon came
into the partnership have been paid. These
amounts have been paid personally by Britton
and that Mr. Gannon has paid nothing on them,
and that her books will reflect this.
Now, during the time that you were keeping the
books, Mrs. Britton, did Mark Gannon ever make
any investigation or inquiry as to the progress of
the business?
By Mr. McArthur: We object to that as incompetent,
irrelevant and immaterial; and an attempt to go
behind the judgment.
By the Court: Sustained.
By Mr. Busby: To which the defendant excepts and
expects the answer to be that Mark Gannon never
had anything to do with the business, never made
any inquiry of her as bookkeeper of the business
and that he made no inquiry as to the progress
of the business.
Did “Spike” Gannon ever make any investigation
or inquiry as to the progress of the business?
By Mr. McArthur: Same objection, if the court please.
By the Court: Sustained.
By Mr. Busby: To which the defendant excepts and
expects the answer to be that “Spike” Gannon
kept up closely with the business, made inquiry
about the business on several occasions, that the
Q.
—xlvii—
[APPENDIX]
books were open to him at all times and that he
did take advantage of this and checked the books
for himself during the fall of 1946 and during
the time when they were drilling the wells and
operating the equipment.
After you returned to Pontotoc County has Mark
Gannon ever appeared here and talked to you
about any matter?
By Mr. McArthur: We object to that as incompetent,
irrelevant and immaterial.
By the Court: Sustained.
By Mr. Busby: To which the defendant excepts and
expects the answer to be that Mark Gannon, in-
sofar as Mrs. Britton knows, has never been in
Pontotoc County or shown any concern as to
whether or not this judgment is collected.
Since your return to Pontotoc County has “Spike”
Gannon ever come to this county or shown any
interest in this matter?
By Mr. McArthur: We object to that for the same
reason.
By the Court: Sustained. ‘
By Mr. Busby: To which the defendant excepts and
expects the answer to be that just prior to the
filing of summons in this case—in this particular
action in Pontotoc County—that Mr. “Spike”
or Roy Gannon, did come to Pontotoe County and
did come to the home of Mrs. Britton while Mr.
Britton was away; that he inquired about the
financial condition and debts of the old partner-
ship as well as as to the financial condition of
Mr. Britton at the present time; that he was ac-
companied by his lawyer but not by his brother,
—xlviii—
[APPENDIX]
who is the plaintiff in this case; that he gave no
indication that any action was to be filed in this
county or that indeed a judgment had been ren-
dered against Mr. Britton in Illinois, nor did he
make any demand for any payment whatsoever
for any matter whatsoever. That is all. Do you
wish to ask her any questions?
By Mr. McArthur: No.
By Mr. Busby: All right. At this time the defendant
wishes to introduce into testimony those portions
of this transcript of the record in case number
47-1052 in the Circuit Court of Fayette County,
Illinois—those portions which the Plaintiff has
not already introduced. In other words, your
Honor, some of this—
By the Court: The same as he introduced?
By Mr. Busby: Yes, the same as he introduced, but
I don’t want to overburden the record, however,
I would like to introduce all that he has not intro-
duced—I would like to put this whole thing in
the record.
By Mr. McArthur: May I inquire, does that include
the testimony that was taken at the trial in Illi-
nois?
By Mr. Busby: I don’t know of any testimony that
was taken at the trial in Illinois. In fact, we main-
tain that there wasn’t any taken. It is properly
certified, just as your exhibits were that you
introduced at the beginning of this case, Mr. Mc-
Arthur.
- By Mr. McArthur: We wish to object to it for the
reason that there is nothing material in that record
that has not already been introduced, if the court
please.
—xlix—
[APPENDIX]
By the Court: Well, I don’t want to make a big record
here. It is going to be to your detriment to make
a big record but I don’t want to keep you from
putting anything in there that you think will help
you, if it is competent. The objection will be over-
ruled, I am going to let him put it in.
By Mr. McArthur: All right, exception.
By Mr. Busby: All right, we rest:
By Mr. McArthur: Do I understand, then, that the
defendant does not wish to offer the original
statement of Mr. Britton to go into the record and
the certified testimony that was taken at the trial?
By Mr. Stanfield: We don’t want that to go in there.
We have a letter from the Clerk stating that there
wasn’t any taken.
By Mr. Busby: We maintain that there was no evi-
dence taken.
By Mr. McArthur: Well—
By Mr. Busby: If you wish to open up that avenue,
Mr. McArthur—
By Mr, McArthur: No; I was just making it available
to you if you want it—it is certified to by the
court reporter.
By Mr. Stanfield: We also have a statement by the
Clerk before that—
By Mr. McArthur: If there is no further testimony,
then,—I don’t know whether the court wants to
hear any argument on it, or not.
By the Court: Do both of you close?
By Mr. Busby: Yes, sir.
By Mr. McArthur: Yes, sir:
—|--
[APPENDIX] :
(Thereupon argument of counsel is heard and the
cause is thereupon submitted to the court for decision)
By the Court: It is the opinion of the Court that the
only way that this judgment could be set aside
would be by affecting the jurisdiction of the court
in Illinois. And the proper place to plead fraud
would be in the State of Illinois, in that court
up there, and that is what it looks like from the
evidence here that you are basing it on. So, judg-
ment for the plaintiff—
By Mr. Stanfield: To which the defendant excepts.
By the Court: Judgment for the Plaintiff in the amount
prayed for. Eighteen thousand dollars, is that
what you are praying for?
By Mr. McArthur: Yes, sir, and some interest, I be-
lieve.
By the Court: Judgment for the Plaintiff for the
amount prayed for.
By Mr. Stanfield: To which the defendant excepts.
oo
CAPPENDIX}
EXHIBIT 12
STATE OF ILLINOIS )
: SS. IN THE CIRCUIT COURT
COUNTY OF FAYETTE )
MARK GANNON, Plaintiff, )
) Complaint in Equity
) for Injunction,
Vv. ) Partition, Redemp-
) tion and Other
THOMAS S. DORAN, W. R. ) Relief.
BRITTON d/b/a, W.R. BRITTON )
DRILLING COMPANY, and )
FIRST NATIONAL BANK OF )
VANDALIA, Defendents. )
Plaintiff, Mark Gannon, by Charles R. Myers, his
Attorney, complaining of the Defendants, Thomas S. Doran,
W. R. Britton, d/b/a W. R. Britton Drilling Company, and
First National Bank of Vandalia, says:
1. That Plaintiff is now and has been for many years
last past been a resident of the County of Rock Island, in
the State of Illinvis.
2. That on or about the 10th day of September, 1946,
the Defendant, W. R. Britton was the owner of a Franks
Portable, fully equipped drilling rig, Model Number
4000-L, including 2 Diesel Motors, One Waukesha Motor,
Koehler Light Plant, together with two strings of drilling
tools, one-3” and one-414”, together with one FWD Truck,
bearing Factory Number 7312, Model Number 27711, En-
gine Number 41873, together with all equipment and ac-
cessories had and used in connection with the above drill-
ing equipment.
3. That on or about the above date in the County of
Rock Island, the Plaintiff purchased an undivided one-
third (1/3) interest in and to the above described truck
—
[APPENDIX]
and drilling equipment from the said W. R. Britton for
the sum of Twenty-Two Thousand, Five Hundred Dollars
($22,500.00), which said sum was then and there paid, to
the Defendant, W. R. Britton.
4. That the said Drilling equipment was then and
there being used to drill oil and gas wells in the County
of Shelby and other places in the State »' Illinois, and
that said equipment so purchased was situated at a great
distance from the home of the Plaintiff and place of pur-
chase, and was of bulky and ponderous nature, weighing
approximately 60,000 pounds.
5. That at the time of said purchase by the Plaintiff,
it was agreed between the Plaintiff and Defendant, W. R.
Britton, who was then and there engaged in the business
of drilling wells for the recovery of oil or gas, that the
said W. R. Britton would continue to use said drilling
equipment for that purpose and would pay to the plaintiff
as his share of the profit derived from the use of said
drilling equipment, the sum of One Thousand Dollars ($1,-
000.00) for each well drilled.
6. That the Defendant from time to time thereafter
drilled certain wells for the recovery of oil and gas in the
counties of Shelby and other counties in the State of
Illinois, and did then and there in the County of Rock
Island, State of Illinois, in the month of December, 1946,
report to the Plaintiff that he had some money for him as
his share of the proceeds derived from the use of said oil
well drilling equipment, and then and there promised to
send the sum o! Four Thousand Dollars ($4,000.00), to
the Plaintiff within a few days; that at the time the Plain-
tiff requested the Defendant to give him some writing to
evidence the ownership of said oil well drilling equip-
ment, whereupon, Plaintiff and Defendant went to the
office of a lawyer in Davenport, Iowa, on the 12th day
of December, 1946, at which time and place the Defendant,
aioli
[APPENDIX]
W. R. Britton, made, executed and delivered to the Plain-
tiff a Bill of Sale as evidence of his ownership of an un-
divided one-third (1/3) interest in and to said oil well
drilling equipment and all equipment and accessories had
and used in connection therewith, which said property is
more particularly described in copy of said Bill of Sale
attached herete, as Exhibit “A”.
7. That at the time of the purchase of said undivided
interest in and to said goods and chattels, the Defendant,
W. R. Britton represented the value of said property to be
in excess of Sixty-Five Thousand Dollars ($65,000.00), and
that at said time, and also at the time of the execution and
delivery of the aforementioned Bill of Sale, said Defendant
warranted that he was the owner thereof and that said
property was free and clear of all liens, claims or encum-
brances of any kind or character.
8. That notwithstanding the Defendant, W. R. Brit-
ton’s representations, that it appears from the records of
the Recorder of the County of Fayette, in the State of
Illinois, that the Defendant purported to mortgage certain
oil well drilling equipment to General Finance Corpora-
tion, a corporation, part of which equipment may have
been purchased by the Plaintiff from the Defendant, W. R.
Britton, as aforesaid; that said purported mortgage appears
of record as Mortgage Instrument “K”, Number 421, in
the office of said Recorder of Fayette County, Illinois, and
copy of which is hereto attached, as Exhibit “B”.
9. Said chattel mortgage did not purport to mortgage
the FWD Truck herein described.
10. Plaintiff is informed and believes that in the
month of January, 1947, General Finance Corporation, a
corporation, attempted to foreclose the aforesaid purported
mortgage, and Plaintiff is informed and believes that said
foreclosure sale was irregular, and did not conform to the
Statutes of the State of Illinois, pertaining to the foreclos-
=
CAPPE?! DIX]
ure of chatiel mortgages and the sale of property there-
under.
11. That Plaintiff is informed and believes that at
said foreclosure sale that the Defendant Thomas S. Doran,
attempted to purchase the equipment covered by said pur-
ported mortgage for the sum of Sixteen Thousand Dollars
($16,000.00), the exact amount of which is not known to
the Plaintiff.
12. The Plaintiff did not learn of the existence of said
purported mortgage, nor of the attempted foreclosure sale
of the property covered thereby until approximately one
week after the date of said attempted foreclosure sale and
that immediately upon being informed thereof, he, the
Plaintiff by and through his agents and attorneys came to
the City of Vandalia, Illinois, to investigate the circum-
stances of said attempted foreclosure and purported pur-
chase by the Defendant, Thomas S. Doran, and at that
time and place the Plaintiff offered to redeem from said
attempted foreclosure sale by payment to the said Defend-
ant, Thamas S. Doran, the amount of money which he,
the said Defendant, had paid to the General Finance Cor-
poration, a corporation, at the purported foreclosure sale;
and also offered at said time and place to convey his, the
Plaintiff's interest in said oil well drilling equipment to
the Defendant, Thom:s S. Doran, for Twenty-Two Thou-
sand Five Hundred Dollars, ($22,500.00).
13. That subsequent to said offer on the part of the
Plaintiff that negotiations were pending between the Plain-
tiff and Defendant for a period of several months subse-
quent thereto, and that the Defendant through his agent
and attorneys, conveyed the information to the Plaintiff
on August 2, 1947 that the Defendant refused to accept the
offer to redeem or to pay any moneys to the Plaintiff for
his interest in said equipment and information to the effect
that the Defendant intended to keep and retain all of said
equipment as his own property.
— |: oo
[APPENDIX)
14. That after notice to the Defendant, Thomas S.
Doran, of the claim and interest in said oil well drilling
equipment by the plaintiff and the repeated offer of the
Plaintiff to redeem from said sale by repaying to the De-
fendant, Thomas S. Doran, the amount of money expended
by him for the alleged purchase of said equipment, the
said Defendant did, on June 11, 1947, purport to mortgage
said property to the First National Bank of Vandalia,
through its agents and attorneys, having actual knowledge
of the claim of interest by the Plaintiff, and his offer to
redeem from said sale, by reason whereof, the First Na-
tional Bank of Vandalia is made a party defendant hereto.
15. That notwithstanding the fact that General Fi-
nance Corporation, a corporation, did not purport to have a
mortgage on a certain FWD Truck, bearing Factory No.
7312, Model No. 27711, Engine No. 41873, Plaintiff is in-
formed and believes that the Defendant, Thomas S. Doran
claims to own or to have purchased said truck from Gen-
eral Finance Corporation, a corporation, at their attempted
foreclosure sale described herein, and said Defendant has
under date of August 29, 1947, filed a proceeding in the
Circuit Court of Fayette County, Illinois, entitled “Thomas
Doran, Plaintiff, v. Edward J. Barrett, Secretary of State,
of the State of Illinois”, being Cause No. 47-32 in which
said suit the Plaintiff prays an order of the Circuit Court
decreeing and finding him, the said Thomas doran, to be
the owner of said motor vehicle, and praying for an order
that the Defendant, Edward J. Barrett, Secretary of the
State of Illinois, be compelled to issue to the said Thomas
Doran, certificate of title to evidence his ownership of said
motor vehicle; copy of which complaint is hereto attached
as “Exhibit C”.
16. That Plaintiff is informed and believes that said
cause in the Circuit Court of Fayette County, being num-
bered 47-32, has been set for hearing, or will be set for
hearing at an early date, and that if said cause is called
walla
[APPENDIX]
for trial without the intervention of this Court that ir-
reparable damage may result to this Plaintiff.
17. Plaintiff is informed and believes that the said
oil well drilling equipment herein described is of a value
of at least Sixty Thousand Dollars ($60,000.00), and was
of such value at the time of the attempted foreclosure sale
by General Finance Corporation, a corporation, and pur-
chased by the Defendant, Thomas S. Doran, and that
Plaintiff is further informed and believes that the De-
fendant, Thomas S. Doran paid to General Finance Cor-
poration, a corporation, at said purported foreclosure sale
the sum of approximately Sixteen Thousand Dollars ($16,-
000.00), which said sum is totally and wholly not com-
mensurate with the true value of said property all of which
the Defendant, Thomas S. Doran, then and there well
knew.
18. That notwithstanding the fact that Plaintiff has
made repeated offers to redeem the oil well drilling equip-
ment herein described from said alleged foreclosure sale
by payment to the Defendant, Thomas S. Doran of the
moneys expended by him and paid to General Finance
Corporation, a corporation, and the repeated refusal of
the said Defendant to accept the same, that the Plaintiff
nevertheless is still willing, and is able to pay, and does now
offer to redeem from said alleged foreclosure sale, by
payment to the said Thomas S. Doran of any and all
moneys paid by him to the said General Finance Corpora-
tion, a corporation.
19. That Plaintiff is without adequate remedy in the
premises except in a Court of equity.
WHEREFORE, Plaintiff prays:
a. That an account may be taken of what is due to
the Defendant, Thomas S. Doran, for the amount expended
by him to General Finance Corporation, a corporation, at
the purported foreclosure sale and upon payment thereof
a
[APPENDIX]
by the Plaintiff to the Defendant, Thomas S. Doran, which
the Plaintiff hereby offers to pay, that the said Defendant
may be decreed to deliver over to the Plaintiff the oil well
drilling equipment and truck as heretofore described and
that the Plaintiff may by decree of this Court, be per-
mitted to redeem said property from said alleged or pur-
ported foreclosure sale.
b. Or that in the alternative, a partition and division
of the oil well drilling equipment and FWD Truck herein
described be made to the respective parties according to
their rights and interests as they may appear to this Court.
c. That an accounting may be had between the Plain-
tiff and Defendant, W. R. Britton, by reason of the premises
herein alleged and that upon said accounting that the
Plaintiff may be declared by decree of this Court to have
a lien upon any interest of the Defendant, W. R. Britton,
in the FWD Truck described herein.
d. That Defendant, Thomas S. Doran, may be re-
strained by the order and injunction of this Court from
prosecuting cause entitled “Thomas Doran, Plaintiff v.
Edward J. Barrett, Secretary of State of the State of Illi-
nois,” being case numbered 47-32 in the Circuit Court of
Fayette County, Illinois, and furth#r until the final deter-
mination of this cause; and further that the Defendant,
Thomas S. Doran may be restrained and enjoined from
selling, assigning, or otherwise encumbering any of the
oil well drilling equipment and FWD Truck herein de-
scribed, until the further order of this Court.
e. That the Plaintiff may have such other and fur-
ther relief in the premises as the Court may deem meet.
MARK GANNON
By Charles R. Myers,
—lviii—
[APPENDIX]
STATE OF ILLINOIS )
: SS.
COUNTY OF FAYETTE )
Mark Gannon, being first duly sworn upon oath states
that he has read the above and foregoing complaint and
knows the contents thereof and that the same is true of
his own knowledge, except that as to the matters as are
therein stated to be on his information and belief and
that as to those matters, he believes it to be true.
Mark M. Gannon,
Subscribed and sworn to before me this 26th day of
September, 1947.
Marie Bennett,
Notary Public.
(SEAL)
EXHIBIT 13
[NOTE: This Exhibit 13 is a copy of the Exhibit 3 intro-
duced in evidence by plaintiff in the District Court of
Pontotoc County, Oklahoma, except that we are omitting
here the affidavit as to military service referred to, and
Exhibit B to the amended complaint, as same are not perti-
nent to any issue now involved. ]
Request For ALias SummMons—Civil Practice Act.
STATE OF ILLINOIS,
ss. Circuit Court
County of Fayette
MARK GANNON PLAINTIFF
v. CIVIL ACTION 47-1052
THOMAS S. DORAN ET AL Defendants
RE LS NRE TT —
poe a
sis
[APPENDIX]
The Clerk of said Court is hereby requested to issue
a summons in the above entitled cause, directed to the said
defendants to file answer or otherwise make appearance
in said Court on or before the 3rd Monday in the month
of Dec. 1947 and deliver the said summons to the Sheriff
of said County for service and return thereon.
Dated this 15th day of November, 1947.
Charles R. Meyers,
Plaintiffs’ Attorney.
To Paul Houck Clerk
ENDORSED:
No. 47-1052
REQUEST FOR SUMMONS
Fayette COUNTY
Circuit Court
Mark Gannon Plaintiffs
ye 3
Thomas S. Doran et al
Defendants
FILED
NOV. 15, 1947
Paul Houck,
Clerk of the Circuit Court
Fayette County, Illinois.
ALIAS CIRCUIT COURT SUMMONS
STATE OF ILLINOIS,
ss.
Fayette County
In the name of the People of the State of Illinois,
in the Circuit Court of Fayette County, Illinois.
iin
[APPENDIX]
MARK GANNON, Plaintiffs,
Vv. No. 47-1052
THOMAS S. DORAN, W. R. BRITTON
d/b/a W. R. BRITTON DRILLING COM-
PANY, and FIRST NATIONAL BANK
of Vandalia, Defendants.
To the above named defendants:
You are hereby summoned to answer the complaint in
the above entitled cause.
Take notice that you must file your answer or other-
wise make your appearance in said court held in the court
house in the city of Vandalia, Illinois, on or before Mon-
day, December 15, 1947, provided this writ shall be served
(Month) (Day)
upon you not less than 20 days prior to said date, but if
this writ shall be served upon you less than 20 days before
said date, and is served 20 days before Monday, January
5, 1948, you shall file your answer or otherwise make your
appearance on said last mentioned date.
If you do not appear according to the command of
this writ, plaintiff may take judgment against you by
default.
This summons must be returned by the officer or other
person to whom it was given for service, with indorsement
thereon with services and fees, if any, not later than 5 days
after service thereof and in no event later than the date
first above named.
aiittiene
[APPENDIX]
WITNESS, PAUL HOUCK, Clerk of said Court and
the Seal thereof, at Vandalia, Illinois, this 15th day of No-
vember, 1947.
Paul Houck, Clerk
(SEAL)
Plaintiff's Attorney—and Address.
CHARLES R. MYERS
VANDALIA, ILL.
To the Sheriff of Fayette County, to Execute:
STATE OF ILLINOIS
ss.
DOUGLAS COUNTY
I have duly served the within by reading the same to
the within named W. R. Britton and at the same time
leaving with each of them a true copy thereof, this 17th
day of November, 1947.
Vaughn W. Pelcher, Sheriff
By Fred E. Parker, Jr.,
Deputy.
Endorsed:
General No. 47-1052
SUMMONS
(IN CHANCERY)
FAYETTE COUNTY CIRCUIT COURT
MARK GANNON Plaintiffs,
Vv.
THOMAS S. DORAN ET AL
Defendants.
SHERIFF’S FEES FOR SERVICE
Service $2.00
__. Miles traveled $ .20
Return $1.00
Total $3.20
—lxii—
CAPPENDIX)
Received this fee of $3.20 .
Nov 17 1947.
VAUGHN W. PELCHER
Sheriff
Deputy.
By Fred E. Parker, Jr.,
FILED
JAN 6 1948
Paul Houck, :
Clerk of the Circuit Court
Fayette County, Illinois.
PAUL HOUCK
VANDALIA, ILL.
STATE OF ILLINOIS )
: SS. IN THE CIRCUIT COURT
COUNTY OF FAYETTE )
MARK GANNON, Plaintiff, )
Vv. )
THOMAS S. DORAN, W. R. ) Complaint in Equity
BRITTON d/b/a W. R. BRITTON _) for Injunction,
DRILLING COMPANY and ) Partition,
FIRST NATIONAL BANK of ) Redemption,
VANDALIA, ) and other relief.
Defendants. )
No. 47-1052
MOTION
Now comes Charles R. Myers, Attorney for Plaintiff in
the above entitled cause, and moves the Court for leave
to file instanter an amended complaint and to make Gen-
eral Finance Corporation, a corporation, party-defendant.
Charles R. Myers
—)xiii—
[APPENDIX}
ENDORSED:
No. 47-1052
STATE OF ILLINOIS FAYETTE COUNTY
In the Circuit Court
Mark Gannon, Plaintiff, v. Thomas S. Doran, et al., De-
fendants.
MOTION
FILED
FEB 3 1951
Paul Houck,
Clerk of the Circuit Court Fayette County, Illinois.
AFFIDAVIT OF MAILING
CHARLES R. MYERS being first duly sworn says that
he mailed a copy of the attached notice and motion on
January 30, 1951, properly addressed with sufficient postage
thereon in the Post Office at Vandalia, Illinois directed to
the following persons:
(1) Robert G. Burnside (Attorney of record for
Thomas S. Doran and First National Bank of
! Vandalia,), Vandalia, Illinois;
: (2) W. R. Britton, d/b/a W. R. Britton Drilling Com-
pany, 503 S. Johnston Street, Ada, Oklahoma.
Further affiant sayeth not.
Charles R. Myers
Subscribed and sworn to before me this 30 day of
January, 1951.
Marie Bennett,
Notary Public.
(SEAL)
—lxiv—
[APPENDIX]
STATE OF ILLINOIS
ss IN THE CIRCUIT COURT
COUNTY OF FAYETTE
MARK GANNON, )
Plaintiff, )
Vv. )
THOMAS S. DORAN, W. R. ) Complaint in Equity
BRITTON d/b/a W. R. BRITTON _ ) for Injunction,
DRILLING COMPANY and ) Partition,
FIRST NATIONAL BANK of ) Redemption,
VANDALIA, ) and other relief.
Defendants. )
NO. 47-1052
NOTICE
TO: Robert G. Burnside, Attorney of Record for Thomas
S. Doran, and the First National Bank of Vandalia,
and to W. R. Britton, d/b/a W. R. Britton Drilling
Company:
Please take notice that the undersigned will on Feb-
ruary 3, 1951, at ten o’clock A.M. in the Circuit Court
Room in the Court House in Vandalia, Fayette County,
Illinois, present a motion in the above entitled cause, copy
of which motion is hereto attached, at which time you may
appear if you so desire.
Charles R. Myers
Attorney for Plaintiff.
ENDORSED:
No. 47-1052
STATE OF ILLINOIS
FAYETTE COUNTY
In the Circuit Court
ame You
(APPENDIX)
Mark Gannon, Plaintiff,
Vv.
Thomas S. Doran, et al.
Defendants.
AFFIDAVIT OF MAILING NOTICE
FILED
FEB 3 1951
Paul Houck
Clerk of the Circuit Court
Fayette County, Illinois
STATE_OF ILLINOIS)
) SS. IN THE CIRCUIT COURT
COUNTY OF FAYETTE )
’ MARK GANNON, )
Plaintiff, )
v. )
THOMAS S. DORAN, W. R. ) Complaint in Equity
BRITTON, d/b/a W. R. BRITTON _) for Injunction,
DRILLING COMPANY, FIRST ) Partition,
NATIONAL BANK OF ) Redemption,
VANDALIA, and GENERAL ) and other relief.
FINANCE CORPORATION, a )
corporation, )
Defendants. )
AMENDED COMPLAINT
Plaintiff, Mark Gannon, by Charles R. Myers and F. C.
Harrison, his Attorneys, complaining of the Defendants,
Thomas S. Doran, W. R. Britton, d/b/a W. R. Britton Drill-
ing Company, First National Bank of Vandalia and General
Finance Corporation, a corporation, and for his amended
complaint filed herein by leave of Court says:
1. That Plaintiff is now and has been for many years
last past a resident of the County of Rock Island, in the
State of Illinois.
—Ixvi—
[APPENDIX]
2. That on or about the 10th day of September, 1946,
the Defendant, W. R. Britton, was the owner of a Franks
Portable, fully equipped drilling rig, Motor Number 4000-L,
including 2 Diesel Motors, One Waukesha Motor, Koehler
Light Plant, together with two strings of drilling tools,
one-3” and one 414”; together with one FWD Truck, bear-
ing Factory Number 7312, Model Number 27711, Engine
Number 41873, together with all equipment and accessories
had and used in connection with the above drilling equip-
ment.
3. That on or about the above date in the County of
Rock Island, the Plaintiff purchased an undivided one-
third (1/3) interest in and to the above described truck
and drilling equipment from the said W. R. Britton, for
the sum of Twenty-two Thousand Five Hundred Dollars,
($22,500.00), which said sum was then and there paid to
the Defendant, W. R. Britton.
4. That the said drilling equipment was then and
there being used to drill oil and gas wells in the County
of Shelby and other places in the State of Illinois, and
that said equipment so purchased was situated at a great
distance from the home of the Plaintiff and place of pur-
chase, and was of bulky and ponderous nature, weighing
approximately 60,000 pounds.
5. That at the time of said purchase by the Plaintiff,
it was agreed between the Plaintiff and Defendant, W. R.
Britton, who was then and there engaged in the business
of drilling wells for the recovery of oil and gas, that the
said W. R. Britton would continue to use said drilling
equipment for that purpose and would pay to the Plaintiff
as his share of the profit derived from the use of said
drilling equipment, the sum of One Thousand Dollars,
($1,000.00), for each well drilled.
6. That the Defendant from time to time thereafter
drilled certain wells for the recovery of oil end gas in the
—Ixvii—
[APPENDIX]
Counties of Shelby and other counties in the State of
Illinois, and did then and there in the County of Rock
Island, State of Illinois, in the month of December, 1946,
report to the Plaintiff that he had some money for him as
his share of the proceeds derived from the use of said oil
well drilling equipment, and then and there promised to
send the sum of Four Thousand Dollars ($4,000.00) to the
Plaintiff within a few days; that at the time the Plaintiff
requested the Defendant to give him some writing to evi-
dence the ownership of said oil well drilling equipment,
whereupon, Plaintiff and Defendant went to the office of
a lawyer in Davenport, Iowa, on the 12th day of Decem-
ber, 1946, at which time and place the Defendant, W. R.
Britton, made, executed and delivered to the Plaintiff a
Bill of Sale as evidence of his ownership of an undivided
one-third (1/3) interest in and to said oil well drilling
equipment and all equipment and accessories had and
used in connection therewith, which said property is more
particularly described in copy of said Bill of Sale attached
hereto as Exhibit “A”.
7. That at the time of the purchase of said undivided
interest in and to said goods and chattels, the Defendant,
W. R., Britton represented the value of said property to
be in excess of Sixty-five Thousand Dollars ($65,000.00)
and that at said time, and also at the time of the execution
and delivery of the aforementioned Bill of Sale, said De-
fendant warranted that he was the owner thereof and that
said property was free and clear of all liens, claims or en-
cumbrances of any kind or character.
8. That notwithstanding, the Defendant, W. R. Brit-
ton’s representations that it appears from the records of
the Recorder of the County of Fayette, in the State of
Illinois, that the Defendant purported to mortgage certain
oil well drilling equipment to General Finance Corporation,
a corporation, part of which equipment may have been
purchased by the Plaintiff from the Defendant, W. R.
—Ixviii—
[APPENDIX]
Britton, as aforesaid; that said purported mortgage appears
of record as Mortgage Instrument “K”, Number 421, in the
Office of said Recorder of Fayette County, Illinois, and copy
of which is hereto attached, as Exhibit “B”.
9. Plaintiff is informed and believes that in the month
of January, 1947, the Defendant, General Finance Cor-
poration, a corporation, attempted to foreclose the afore-
said purported mortgage; and that at said time there was
in full force and effect in the State of Illinois a Statute,
being Section 27, of Chapter 95, of Illinois Revised Statutes,
as follows:
“Sale of property under power in Chattel mortgage—
County in which sold—Notice—Statement of Sale
by Mortgagee—Penalty—Recording Prior to Sale.
“That all sales of personal property under the power
of sale contained in any chattel mortgage, shall be
made in the county where the mortgagor resides, or
where the property is situated when mortgaged. If
there are more than one mortgagor, then in the County
where the mortgagor in possession of the property
resides at the time of taking possession by the mort-
gageee, and in every case, where the mortgagor can
be found or his or her postoffice address can be as-
certained, notice of the time and place of said sale
shall be given to one or more of the mortgagors three
days prior to said sale, and upon the making of said
sale the mortgagee shall make out a statement show-
ing the items of personal property sold, the names of
each purchaser and the amount for which each article
sold, and also an itemized statement of the necessary
reasonable expenses incurred in taking, keeping and
selling said property, and shall deliver the same to the
mortgagor or some one of them in person or by mail,
and if he fails so to do within ten days after said sale,
the owner of said property may sue for and recover
—lxix—
[APPENDIX]
one-third of the value of the property so sold, from the
mortgagee or person making said sale as assignee of
said mortgage: Provided, that nothing in this act shall
apply to the sale of furniture by regular dealers on
the so-called installment plan: Provided, also, that no
sale made as hereinabove provided shall be valid as
against the creditors of the mortgagor, unless said
mortgage shall be recorded at least five days prior to
the taking of possession of the goods and chattels in
said mortgage described, and any such sale made
within five days of the recording of said mortgage
shall be fraudulent and void as against the creditors
of the mortgagor. 1895, June 21, Laws 1895, p. 260,
Sec. 2; 1915, June 23, Laws 1915, p. 530. Sec. 1.”
and that Plaintiff is informed and believes that said fore-
closure sale was irregular and did not conform to said
Statute in that notice of the time and place of said sale
was not given to the Plaintiff herein, nor to the Defendant,
W. R. Britton d/b/a W. R. Britton Drilling Company three
/days prior to said sale and that the said Defendant, General
Finance Corporation, a corporation, as mortgagee did not
upon the making of said sale, make out a statement show-
ing the items of personal property sold, the names of each
purchaser and the amount for which each article was sold,
and also an itemized statement of the necessary reasonable
expenses incurred in taking, keeping and selling said
property, and delivering the same to the mortgagor within
ten days after said sale.
10. That Plaintiff is informed and believes that at said
foreclosure sale that the Defendant, Thomas S. Doran, at-
tempted to purchase the equipment covered by said pur-
ported mortgage for the sum of Sixteen Thousand Dollars
($16,000.00) the exact amount of which is not known to
the Plaintiff.
11. That Plaintiff did not learn of the existence of said
purported mortgage, nor of the attempted foreclosure sale
—Ixx—
[APPENDIX]
of the property covered thereby until approximately two
weeks after the date of said attempted foreclosure sale
and that immediately upon being informed thereof, he,
the Plaintiff, by and through his agents and attorneys,
came to the City of Vandalia, Illinois, to investigate the
circumstances of said attempted foreclosure and purported
purchase by the Defendant, Thomas S. Doran, and at that
time and place the Plaintiff offered to redeem from said
attempted foreclosure sale by payment to the said Defend-
ant, Thomas S. Doran, the amount of money which he,
the said Defendant, had paid to General Finance Corpora-
tion, a corporation, at the purported foreclosure sale; and
also offered at said time and place to convey his, the
Plaintiff’s interest in said oil well drilling equipment to
the Defendant, Thomas S. Doran for Twenty-Two Thou-
sand Five Hundred Dollars ($22,500.00).
12. That subsequent to said offer on the part of the
Plaintiff that negotiations were pending between the Plain-
tiff and Defendant for a period of several months, and
that the Defendant through his agents and attorneys, con-
veyed the information to the Plaintiff on August 2, 1947,
that the Defendant refused to accept the offer to redeem
or to pay any moneys to the Plaintiff for his interest in
said equipment and information to the effect that the
Defendant intended to keep and retain all of said equip-
ment as his own property.
13. That after notice to the Defendant, Thomas S.
Doran, of the claim and interest in said oil well drilling
equipment by the Plaintiff, and the repeated offer of the
Plaintiff to redeem from said sale by repaying to the
Defendant, Thomas S. Doran, the amount of money ex-
pended by him for the alleged purchase of said equipment,
the said Defendant did, on June 11, 1947, purport to mort-
gage said property to the First National Bank of Vandalia,
to secure the payment of Twenty Thousand Eight Hundred
Dollars (20,800.00). The said First National Bank of Van-
ES RT ae ne a SL a Nl —— f
—Ixxi—
[APPENDIX]
dalia, through its agents and attorneys having actual
knowledge of the claim of interest by the Plaintiff, and his
offer to redeem from said sale, by reason whereof, the
First National Bank of Vandalia is made a party defendant
hereto.
14. Plaintiff is informed and believes that the said oil
well drilling equipment herein described is of a value of
at least Sixty Thousand Dollars ($60,000.00), and was of
such value at the time of the attempted foreclosure sale
by General Finance Corporation, a corporation, and pur-
chased by the Defendant, Thomas S. Doran, and that Plain-
tiff is further informed and believes that the Defendant,
Thomas S. Doran, paid to General Finance Corporation, a
corporation, at said purported foreclosure sale the sum of
approximately Sixteen Thousand Dollars ($16,000.00),
which said sum is totally and wholly not commensurate
with the true value of said property, all of which the
Defendant, Thomas S. Doran, then and there well knew.
15. That notwithstanding the fact that Plaintiff has
made repeated offers to redeem the oil well drilling equip-
ment herein described from said aileged foreclosure sale
by payment: to the Defendant, Thomas S. Doran of the
moneys expended by him to General Finance Corporation,
a corporation, and the repeated refusal of the said Defend-
ant to accept the same, that the Plaintiff nevertheless is
still willing, and is able to pay and does now offer to re-
deem from said foreclosure sale by payment to the said
Thomas S. Doran of any and all moneys paid by him to
the said General Finance Corporation, a corporation, pro-
vided said oil well drilling equipment is of the same or
similar value and in the same or similar condition as it
was as of the date of the foreclosure.
16. That the acts of the Defendant, W. R. Britton,
d/b/a W. R. Britton Drilling Company as herein alleged,
constitute a fraud upon the Plaintiff.
—)xxii—
[APPENDIX]
17. That Plaintiff is informed and believes that at
the time of the purported mortgage foreclosure sale to the
Defendant, Thomas S. Doran, that the Defendant General
Finance Corporation, a corporation, and Thomas S. Doran
knew of the infirmity in the title of the Defendant W. R.
Britton, and that this Plaintiff or someone had an interest
in said property and that at said time the said General
Finance Corporation, a corporation, would not and did not
warrant title to the Defendant, Thomas S. Doran, by reason
thereof.
18. That the Plaintiff is without adequate remedy in
the premises except in a Court of Equity.
WHEREFORE, Plaintiff prays:
A. That an account may be taken of what is due to
the Defendant, Thomas S. Doran for the amount expended
by him to General Finance Corporation, a corporation, at
the purported foreclosure sale, and upon payment thereof
by the Plaintiff to the Defendant Thomas S. Doran, which
the Plaintiff offers to pay, if the said oil well drilling
equipment is of the same or similar value, or is of the same
or similar condition as it was at the time of the purported
foreclosure sale, that the said Defendant may be decreed
to deliver over to the Plaintiff the oil well drilling equip-
ment and truck as heretofore described and that Plaintiff
may by decree of this Court be permitted to redeem said
property from said alleged or purported foreclosure sale
if it is in the same or similar condition or is of the same
or similar value as it was at the time of said purported
foreclosure sale.
B. Or, that in the alternative, a partition and division
of the oil well drulling equipment and FWD Truck herein
described be made to the respective parties according to
their rights and interests as they may appear to this Court.
C. That an accounting be had between Plaintiff and
Defendant General Finance Corporation, a corporation, as
ee ee Se LNT Se Oey Te ee PEPE IRE Ua os —
—Ilxxiii—
[APPENDIX]
to the value of the property sold without compliance with
the provisions of the Statute hereinabove set forth and as
herein alleged; and that the Plaintiff may have and recover
for himself the penalty provided for in said Statute and
that he may be subrogated to the rights of the Defendant
W. R. Britton to recover any penalty recoverable by said
Defendant W. R. Britton under and by virtue of the pro-
visions of said Statute, for himself, the Plaintiff, by virtue
of the fraud perpetrated upon the Plaintiff by the Defend-
ant, W. R. Britton, d/b/a W. R. Britton Drilling Company.
D. That an accounting may be had between the Plain-
tiff and Defendant, W. R. Britton by reason of the premises
herein alleged and that upon said accounting that the
Plaintiff may be declared by decree of this Court to have
a lien upon any interest of the Defendant, W. R. Britton,
in all of said property described in the Bill of Sale and a
lien on any amount recoverable by him or in his name
by this Plaintiff under the statute set forth hereinabove;
or that in the alternative that this Plaintiff may have judg-
ment against the said Defendant, W. R. Britton, for any and
all moneys paid to him by the Plaintiff for the purchase of
an undiviled interest in the personal property described
in the Bill of Sale hereto attached.
E. That the Defendant, Thomas S. Doran, may be re-
strained and enjoined from selling, assigning or otherwise
encumbering any of the oil well drilling equipment and
the FWD Truck herein described, until the further order
of this Court.
F. That the Plaintiff may have such other and further
relief in the premises as the Court may deem meet.
Mark Gannon
by Charles R. Meyers,
Charles R. Myers
Vandalia, Illinois
—Ixxiv—
LAPPENDIX]
F. C. Harrison
1106 Davenport Bank Bldg.
Davenport, Iowa
Plaintiff's Attorneys
STATE OF IOWA )
) SS.
COUNTY OF SCOTT )
MARK GANNON, Being first duly sworn upon oath,
states that he has read the above and foregoing complaint
and knows the contents thereof and that the same is true
of his own knowledge, except as to the matters as are
therein stated to be on his information and belief and that
as to those matters, he believes it to be true.
Mark Gannon
Subscribed and sworn to before me this 23rd day of
January, 1951
(SEAL) Francis C. Harrison
Notary Public in and for Scott
County, Iowa
EXHIBIT “A”
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS:
That for the consideration of the sum of One Hundred
Dollars and other valuable consideration, to me in hand
paid, the receipt whereof is hereby acknowledged, I, W. R.
Britton of the County of Fayette in the State of Illinois,
have this day sold, and by these presents do grant, bar-
gain, sell and convey unto Mark Gannon of the County
of Rock Island, and State of Illinois, the following de-
scribed goods and chattels, now owned by me and now in
the possession of W. R. Britton, and now located at St.
Elmo, in the County of Fayette and State of Illinois, to-
wit:
—jXXV—
[APPENDIX]
An undivided one-third (1/3) interest in and toa
Franks Portable Fully Equipped Drilling Rig,
being Model #4000 ACLX Serial #3128, includ-
ing two (2) Cummings Diesel Motors #—____
and #_._., and also including one (1) Wau-
kasha Motor on Mud Pump being #-—
Light plant Koler E. P. Model LAH 4114762,
Volt 115 D. C. Amp. 174 R. P. M. 1350, together
with two strings of drilling tools, one 3” and one
41%”, together with all equipment and accessories
had and used in connection with the above re-
ferred to drilling equipment.
And I covenant to warrant and defend the title in and
to such interest in said chattels to the said Mark Gannon
against the lawful claims of all persons whomsoever.
Executed this 12th day of December, 1946.
W. R. Britton
State of Iowa )
) SS.
County of Scott )
On this 12th day of December, A. D. 1946, before me,
Ethel N. Sargent a Notary Public in and for Scott County,
State of Iowa, personally appeared W. R. Britton, to me
personally known to be the person named in and who exe-
cuted the foregoing instrument, and acknowledged that
he executed the same as voluntary act and deed.
Ethel N. Sargent
Notary Public in and for Scott
County, State of Iowa
ENDORSED:
No. 47-1052
STATE OF ILLINOIS
FAYETTE COUNTY
—lxxvi—
C[APPENDIX}
In the Circuit Court
Mark Gannon, Plaintiff
Vv.
Thomas S. Doran, et al, Defendants
Amended Complaint
FILED
FEB 3 1951
Paul Houck,
Clerk of the Circuit Court
Fayette County, Illinois.
CLERK’S CERTIFICATE OF COPY, WITH JUDGE’S
VERIFICATION
STATE OF ILLINOIS,
SS.
County of Fayette
I, Paul Houck Clerk of the Circuit Court in and for
said County, in the State aforesaid, do hereby certify the
foregoing to be a true, prefect and complete copy of Re-
quest for Alias Summons, Alias Summons, Affidavit as to
Military Service, Motion to amend Complaint Affidavit of
Mailing and Notice, and Amended Complaint in Case +47-
1952 Mark Gannon v. Thomas S. Doarn, W. R. Britton,
et al.
IN TESTIMONY WHEREOF, I have hereunto set my
hand and affixed the seal of said Court, at my office in
Vandalia, Illinios this 12th day of March, A. D. 1953.
(SEAL) Paul Houck, Clerk.
STATE OF I[uULINOIS, )
) SS.
County of Fayette )
I, James G. Burnside Judge of the Circuit Court, do
hereby certify that Paul Houck, whose name is subscribed
to the foregoing Certificate of Attestation, now is, and was
—Ixxvii—
[APPENDIX]
at the time of signing and sealing the same, Clerk of the
Circuir Court of Fayette County aforesaid, and keeper of
the Records and Seal thereof, duly elected and qualified
to office; that full faith and credit are and of right ought
to be given to all his official acts as such in all Courts of
Record and elsewhere; and that his said attestation is in
due form of law, and by the proper officer.
Given under my hand and seal this 12th day of March,
A. D. 1953.
(SEAL) James G. Burnside, (SEAL)
STATE OF ILLINOIS, )
) SS.
County of Fayette )
I, Paul Houck Clerk of the Circuit Court in and for
said County, in the State aforesaid, do hereby certify that
James G. Burnside whose genuine signature appears to
the foreoging certificate, was at the time of the signing
the same, Judge of the Circuit Court, Fayette County, Illi-
nois duly commissioned and qualified; that full faith and
credit are and of right ought to be given to all his official
acts as such in all Courts of Record and elsewhere.
IN TESTIMONY WHEREOF, I have hereunder set my
hand and affixed the seal of said Court, at my office in
Vandalia, Illinois this 12th day of March, A.D. 1953.
Paul Houck, Clerk.
(SEAL)
—Ixxviii—
[APPENDIX]
EXHIBIT 14
IN THE District Court WITHIN AND FOR PoNnTOTOC
County, OKLAHOMA
Mark Gannon, Plaintiff
v. No. 20,262
W. R. Britton, Defendant
JUDGEMENT
NOW ON THIS 4th day of May, 1953, this cause com-
ing on for trial, the matter having been set for this date
by the agreement of the parties, the plaintiff appearing by
his attorney, C. L. McArthur of the firm McArthur and
Orton; the defendant W. R. Britton appearing in person
and by his attorneys, W. V. Stanfield and David Busby, of
the firm Busby, Stanfield, Busby and Deaton, whereupon,
the defendant in open court demanded a jury trial and re-
quested that the matter be passed until a jury was present.
The court finds that under the pleadings in said cause, no
jury question is involved, and the motion of defendant for
jury trial is overruled; whereupon, both parties announced
ready for trial, and the court proceeds to trial. The plain-
tiff thereupon introduced in evidence, duly authenticated
and certified copy of a judgment of the Circuit Court of
Fayette County, Illinois in Cas. No, 47-1052, and duly
authenticated and verified copies of other proceedings in
said cause in said Circuit Court of Fayette County, Illinois,
and rested. The defendant thereupon, produced witnesses,
sworn and examined in open court. Court heard said testi-
mony and documentary evidence introduced by defendant,
and defendant rests. No further evidence being offered by
either party, both sides having rested, court finds, and it is
ordered, adjudged, and decreed, that the plaintiff herein,
Mark Gannon recovered judgment against the defendant,
W. R. Britton d/b/a W. R. Britton Drilling Company, on
the 29th day of September, 1951 by the judgment and
decree of the Circuit Court of Fayette County, Illinois in
PERT AAT RADI SLI LOPE NENT 8 eS —
La
—Ixxix—
[APPENDIX)
Case No. 47-1052, for the sum of $18,000.00. The court
finds, and it is ordered, adjudged, and decreed, that the
said Circuit Court of Fayette County, Illinois, did then and
there have jurisdiction of the subject matter and of the
person of the said W. R. Britton, and that said judgment is
a valid, subsisting, and binding judgment upon said de-
fendant; that same has not been paid or satisfied, and that
the plaintiff is entitled to interest on the said judgment
from September 29, 1951 at the rate of 6% per annum.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED, That plaintiff Mark Gannon have judgment
against the defendant W. R. Britton herein, for the sum of
$18,000.00 together with interest thereon at the rate of 6%
per annum from the 29th day of September, 1951 until
paid, and for cost of this action, for all of which let execu-
tion. To all of which judgment of the court the defendant
excepts, and exceptions are by the court allowed.
(Signed) John Boyce McKeel
Judge
ENDORSEMENTS THEREON APPEARS:
Filed May 6, 1953, and entered in Book 36 at Page 513.
ABE HOLLOWAY, COURT CLERK
Pontotoc County, Okla.,
By W. D. Abbott, Deputy.
RECORDED, Journal 68, at Page 398.
Judgment Docket #5, Pg. 19.
—lxxx—
[APPENDIX]
EXHIBIT 15
[Filed in Supreme Court of
Oklahoma Jan. 29, 1955,
Andy Payne, Clerk.]
In THE SUPREME COURT OF THE STATE OF OKLAHOMA
NO. 36249
W. R. BRITTON, Plaintiff in Error,
Vv.
MARK GANNON, Defendant in Error.
MOTION FOR ORAL ARGUMENT
Comes now the plaintiff in error and respectfully
moves the Court to grant leave to submit oral argument in
this cause, and in support hereof represents and shows to
the Court as follows:
1. The defendant in error in this cause chose the
State district court as his forum.
2. All questions, legal or equitable, that could be
raised are pending in this Court.
3. The plaintiff in error expects this action to be dis-
missed, or to be remanded with instructions for the dis-
trict court to hear the evidence which the plaintiff in error
submits in defense of this action.
4. After the defendant in error obtained the judg-
ment in the State district court which plaintiff in error
asserts was rendered erroneously, defendant in error then
had execution issued against plaintiff in error, on which
return was made on the 28th day of September, 1953,
with the notation no property found. Thereafter, on Octo-
ber 17, 1953, defendant in error instituted proceedings
against plaintiff in error for a disclosure of assets; that at
the hearing thereon plaintiff in error disclosed assets con-
sisting of $114.03 on deposit in The First National Bank
in Ada, Ada, Oklahoma, which amount was by the court
I Sa ee sins oi aaa) a i
—Ixxxi—
[APPENDIX)}
ordered paid on said judgment, and the hearing on said
motion was continued subject to call and is still pending
in said court; that in said proceedings in the State district
court the defendant in error sought the same relief as he
is now asking in aid of execution in an action filed in the
United States District Court in and for the Eastern District
of Oklahoma, on January 20, 1955, being Cause No. 3881-
Civil, styled “Mark Gannon, Plaintiff, v. W. R. Britton,
Margaret Carroll Britton, and Carroll Oil, Incorporated, a
corporation, Defendants,” while this cause is pending on
appeal to this Court.
5. Defendant in error seeks to circumvent the State
courts by the filing of this Federal Court action, involving
the same fact situation, the same questions of law, and the
same relief which may be granted to either party by virtue
of the action herein pending before the Supreme Court;
that the same and all necessary parties have been joined in
the State action and all are amenable to the State court
process; that the filing of said action in the Federal court
is unprecedented as the defendant in error has elected to
go into the State court seeking the same relief as is sought
in the Federal court action.
6. This cause should be advanced for speedy action
and this motion for ore’ argument is made for the primary
purpose of obtaining a quick and speedy hearing in the
State court on the question involved where the plaintiff
in error asserts his right to defend in an Oklahoma court
against a judgment obtained by fraud in a court of a foreign
state, and such question should be heard in argument by
the entire personnel of this Court.
Respectfully submitted,
BUSBY, STANFIELD, BUSBY & DEATON
By David Busby
Ada, Oklahoma
Attorneys for W. R. Britton,
Plaintiff in Error.
—_——— TREN
—Ixxxii—
[APPENDIX]
STATE OF OKLAHOMA )
: SS. Affidavit of Service
County of Pontotoc )
W. V. STANFIELD, of lawful age, being duly sworn
states that he is one of the attorneys for the Plaintiff in
Error in the foregoing cause; that on the 28th day of Jan-
uary, 1955, he served a full, true and correct copy of the
foregoing Motion on the Defendant in Error by mailing
same to McArthur & Orton, Cummings Building, Ada,
Oklahoma, the attorneys of record for the Defendant in
Error.
W. V. Stanfield.
Subscribed and sworn to by W. V. Stanfield before
me this 28th day of January, 1955.
Mary E. Waggoner
Seal Notary Public
My commission expires
August 9, 1957
EXHIBIT 16
[Filed in Supreme Court of
Oklahoma Feb. 3, 1955,
Andy Payne, Clerk.]
IN THE SUPREME CouRT OF THE STATE OF OKLAHOMA
No. 36249
W. 2. BRITTON, Plaintiff in Error,
Vv.
MARK GANNON, Defendant in Error.
RESPONSE TO MOTION FOR ORAL ARGUMENT
Comes now the defendant in error and in response to
the motion of plaintiff in error for oral argument, states to
the court:
CRE ERPS OTE SIR —
—Ixxxiii—
[APPENDIX]
(1) That said defendant has no objection whatever to
having this case set for oral argument, and would welcome
any action of this court advancing said cause in this court.
(2) Said defendant in error admits that on January
20, 1955, he filed a suit in the United States District Court
for the Eastern District of Oklahoma, being cause No. 3881-
Civil, styled “Mark Gannon, plaintiff, v. W. R. Britton, Mar-
garet Carroll Britton, and Carroll Oil, Incorporated, a cor-
poration, defendants,” and that said cause is now pending.
The said defendant in error alleges the facts to be that he
obtained judgment against said W. R. Britton in the Dis-
trict Court of Pontotoc County, Oklahoma, on the 4th day
of May, 1953, for the sum of $18,000.00, together with inter-
est thereon at the rate of six percent (6%) per annum
from the 29th day of September, 1951, until paid, and costs
of said action, that being the case from which appeal has
been taken by plaintiff in error to this court; that after the
rendition of said judgment by the District Court of Ponto-
toc County, Oklahoma, the defendant in error W. R. Britton
caused to be organized under the laws of the State of Okla-
homa, a corporation known as Carroll Oil, Incorporated,
and thereafter, on June 18, 1953, assigned to the said cor-
poration oil and gas leases of great value, for the purpose
of hindering, delaying and defrauding the defendant in
error herein in the collection of his debt and judgment;
that the said W. R. Britton, plaintiff in error, has not super-
seded said judgment by any bond as required by the
statutes of the State of Oklahoma; that therefore, the de-
fendant in error, Mark Gannon, caused execution to be
issued against the said W. R. Britton, and that said execu-
tion was returned no goods found, and that thereupon, the
said defendant in error caused the said W. R. Britton to
be summoned before the District Court of Pontotoc County,
Oklahoma, to answer questions as to his assets, as author-
ized by the statutes of the State of Oklahoma, and that the
said W. R. Britton, in answer to questions before said court,
—Ilxxxiv—
[APPENDIX]
denied that he had any assets subject to execution except
the sum of $114.03, deposited in the First National Bank
in Ada, Ada, Oklahoma, which sum, under the direction of
the court, was paid to the said defendant in error, Mark
Gannon, to be applied upon his judgment, and that no
other payments have been made on said judgment; that in
said proceedings before the District Court of Pontotoc
County, Oklahoma, in an attempt to discover assets of the
said W. R. Britton, the plaintiff in error W. R. Britton
sought to evade many questions, and objected to producing
records and documents which would throw light on his
assets, and on the transfer of certain assets by him to
Margaret Carroll Britton and to Carroll Oil, Incorporated,
for the reason that said Margaret Carroll Britton and Car-
roll Oil, Incorporated, were not parties to said proceeding,
and that their records disclosing transactions between the
said W. R. Britton and said parties could for that reason,
not be ordered brought before said court.
(3) Defendant in error denies that he seeks to cir-
cumvent the State court of the State of Oklahoma by the
suit filed in the Federal court, and denies that said pro-
ceeding in the Federal court involves the same fact situa-
tion and the same questions of law, or that said action seeks
the same relief which may be granted to the parties in
the action herein pending before the Supreme Court. Said
defendant in error further denies that all the necessary
parties have been joined in the State action, as in the Fed-
eral action, or that all of the parties named in the Federal
action are amenable to this court in this case. Defendant
in error states that the said action in the Federal court is
in the nature of a creditor’s bill, to set aside fraudulent
conveyances by the said plaintiff in error W. R. Britton,
to other parties named in said Federal action, and to sub-
ject to the payment of the judgment of the said defendant
in error Mark Gannon, against the said plaintiff in error
W. R. Britton, property fraudulently conveyed by the said
—lxxxv—
[APPENDIX]
W. R. Britton, to hinder, delay and defraud the said Mark
Gannon.
WHEREFORE, the said Mark Gannon, defendant in
error, prays that this cause proceed in this court as rapidly
as is possible with convenience to this court.
McARTHUR & ORTON, Attorneys
for Defendant in Error
By C. L. McArthur.
STATE OF OKLAHOMA )
: SS. Affidavit of Service
COUNTY OF PONTOTOC )
C. L. McArthur, of lawful age, being duly sworn, upon
oath states: That he is one of the attorneys for defendant in
error in the above cause; that on the 2nd day of February,
1955, he served a full, true and correct copy of the fore-
going Response to Motion for Oral Argument, on the plain-
tiff in error, by mailing a copy thereof to Busby, Stanfield,
Busby & Deaton, American Building, Ada, Oklahoma, the
attorneys of record for the plaintiff in error.
C. L. McArthur
Subscribed and sworn to before me this 2nd day of
February, 1955.
SEAL Johnie Reed, Notary Public
My commission expires
January 3, 1957.
—Ixxxvi—
[APPENDIX]
EXHIBIT 17
[Filed in Supreme Court of
Oklahoma, June 2, 1955,
Andy Payne, Clerk.]
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA
W. R. BRITTON, Plaintiff in Error, )
v. ) No. 36,249.
MARK GANNON, Defendant in Error. )
PETITION FOR REHEARING |
Comes now Mark Gannon, defendant in error, and re-
spectfully represents to the court, that on the 3rd day of
May, 1955, a decree and judgment was rendered by this
Court in this cause, reversing and remanding for a new
trial the judgment of the District Court of Pontotoc County,
Oklahoma, whereby this petitioner Mark Gannon obtained
a judgment against the plaintiff in error W. R. Britton, in
a suit on a foreign judgment rendered in favor of the said
Mark Gannon against the said W. R. Britton by the Circuit
Court in and for Fayette County, Illinois. Said defendant
in error would show to the court:
(1) The opinion and judgment of the court is errone-
ous in that it adopted or accepted the theory of the plain-
tiff in error that allegations to the effect that Mark Gan-
non was not the real party in interest in the suit in Illinois,
or in the Oklahoma court, are a legitimate or a valid de-
fense as against a foreign judgment. By this error, the
court failed and refused to give full faith and credit to
the Illinois judgment, as required by Article IV, Section
1 of the Constitution of the United States. Inasmuch as the
Circuit Court in and for Fayette County, Illinois accepted
and regarded Mark Gannon as the real party in interest,
and, in fact, the only party in interest as a plaintiff, the
courts of Oklahoma must give full faith and credit to that
—
LONE SIRE ARIE ETERS ID ela
—Ixxxvii—
[APPENDIX]
conclusion of the Illinois Court, and are not now permitted
to go into or question that fact.
(2) The court erred in adopting or accepting the view
that allegations in regard to the acts, conduct, and state-
ments of Roy “Spike” Gannon, and an offer to prove such
acts and statements by him, imputed fraud on the part of
the plaintiff Mark Gannon. There is nothing in the record
to indicate that any of the alleged fraud referred to in Brit-
ton’s pleadings or tendered proof, was perpetrated or
instigated by the plaintiff Mark Gannon, or that he even
had any knowledge of it, if in fact such allegations con-
tained any vestige of truth.
(3) That said decision is wholly in conflict with the
controlling decisions of the United States Supreme Court
to the effect that fraud could not be pleaded in an action
in one state upon the judgment of another.
(4) That said decision is wholly in conflict with the
controlling decisions of the Supreme Court of the State of
Illinois, to the effect that the judgment of a court having
jurisdiction of the subject matter and of the parties cannot
be collaterally attacked in another court for fraud in its
procurement unless that fraud is such as “prevents the
court from acquiring jurisdiction or merely gives it color-
able jurisdiction.”
WHEREFORE, defendant in error tenders the an-
nexed brief in support of this petition, and prays that
a rehearing of said cause may be granted by the Honorable
Court, and that full faith and credit be given to the judg-
ment of the Circuit Court of Fayette County, Illinois, and
that recognition be given to the controlling decisions of
the United States Supreme Court, and of the Supreme
—Ilxxxviii—
[APPENDIX]
Court of the State of Illinois, which decisions should be
binding and controlling on this court.
C. L. McArthur
Hobert G. Orton
218 Cummings Building
Ada, Oklahoma
Attorneys for Defendant in Error,
Mark Gannon.
EXHIBIT 18
[Filed in Supreme Court of
Oklahoma June 28, 1955,
Andy Payne, Clerk.]
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA
W. R. BRITTON, Plaintiff in Error, )
Vv. ) No. 36,249.
MARK GANNON, Defendant in Error. )
RESPONSE OF PLAINTIFF IN ERROR TO MOTION
TO STAY ISSUANCE OF MANDATE AND
EXECUTION THEREOF
Plaintiff in error for response to motion of defendant
in error for stay of issuance of mandate and execution
thereof, now shows to the Court that the said motion should
be denied and overruled and mandate issued for the fol-
lowing reasons, towit:
(1) The issuance of a mandate is now in order ac-
cording to the rules and procedure of this Court.
(2) The issuance of mandate is entirely within the
jurisdiction of this Court.
(3) The Supreme Court of the United States is wholly
without jurisdiction to review the decision of this Court
pee PPG RELL ELAN OPENER SLR EI EIN LIEN TEL PEN eaenaeeaesceea
—Ilxxxix—
[APPENDIX]
in this cause and lack of jurisdiction appears upon the face
of the motion of defendant in error.
(4) There is no requirement of law that this Court
stay its mandate pending action by defendant in error to
seek review by the Supreme Court of the United States.
(5) Refusal to stay the mandate will not prejudice
defendant in error.
(6) Stay of the mandate will disrupt the orderly
processes of this Court and operate to the prejudice of
Plaintiff in error.
(7) The judgment rendered by the District Court of
Pontotoc County, Oklahoma and reversed by the decision
of this court, has, by defendant in error, been made the
basis of an ancillary action in the United States District
Court of the Eastern District of Oklahoma to the hender-
ance and injury of the plaintiff in error and other parties.
(8) The Supreme Court of the United States is now
on extended vacation and the gratuitous action of this
Court in staying mandate upon motion of defendant in
error, would result in hardship and injury to the plaintiff
in error.
Brief in support of this motion is hereto attached and
made a part hereof.
Wherefore, plaintiff in error urges that the motion
of the defendant in error be denied and that mandate and
execution thereof issue.
BUSBY, STANFIELD, CRAWFORD, BUSBY
& DEATON
Attorneys for Plaintiff in Error
By J. W. Crawford
Service of the above Response and receipt of a copy
thereof, together with the brief thereto attached, is ac-
’ PEW ha oe a
— BR ara aa a SPAS ONLY MAR CL EMR THY
—XC-—
[APPENDIX]
knowledged, and service accepted, this 27th day of June,
1955.
McARTHUR & ORTON, Attorneys for
Defendant in Error Mark Gannon
By C. L. McArthur
EXHIBIT 19
[Filed in Supreme Court of
Oklahoma June 30, 1955,
Andy Payne, Clerk.]
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA
W. R. BRITTON, Plaintiff in Error, )
v. ) No. 36,249.
MARK GANNON, Defendant in Error. )
REPLY OF DEFENDANT IN ERROR TO RESPONSE
OF PLAINTIFF IN ERROR TO MOTION TO STAY
ISSUANCE OF MANDATE AND EXECUTION THEREOF
Comes now the defendant in error, Mark Gannon, and
asks leave of court to file this reply to the response of plain-
tiff in error, to motion to stay issuance of mandate and
execution thereof.
REPLY
The defendant in error filed herein, on the 24th day of
June, 1955, his motion to stay issuance of mandate and
execution thereof, under the impression that such stays
were granted by this and other courts, under similar cir-
cumstances, almost as a matter of course, and that the grant
of such stay was not in any way mandatory on the court,
but that such stays were ordinarily granted under such
circumstances, but inasmuch as the plaintiff in error has
filed objection to such stay, we feel that it is at least a
—xci—
[APPENDIX}
courtesy to this court to file a reply herein, to the matters
set out in the response of plaintiff in error.
We agree with the plaintiff in error that the issuance
of the mandate in this case is within the jurisdiction of
this court, and that there is no mandatory requirement of
law that this court should stay its mandate.
This is certainly not an appropriate time nor place to
argue the question as to whether the United States Su-
preme Court has or has not jurisdiction to review the de-
cision of this court in this case. It has been held many times
that the Supreme Court of the United States is itself the
final arbiter as to its jurisdiction to grant certiorari in
order to enforce the full faith and credit clause of the
Constitution of the United States. Williams v. North Caro-
lina (1942), 217 U.S. 287, 87 L.Ed. 279, 63 S.Ct. 207. John-
son v. Muelberger (1951), 340 U.S. 581, 95 L.Ed. 552, 71
S.Ct. 474. It is quite true that the general rule is that the
Supreme Court of the United States will not review de-
cisions of the highest court of a State, unless such decisions
and judgments are final, but as stated by that court in the
case of Pope v. Atlantic Coast Line Railroad Company,
245 U.S. 379, 97 L.Ed. 1094, 73 S.Ct. 749, “Yet we are not
bound to determine the presence or absence of finality from
a mere examination of the ‘face of the judgment.’ We have
not interpreted § 1257 so as to preclude review of federal
questions which are in fact ripe for adjudication when
tested against the policy of § 1257.”
The decision of this court refusing to grant full faith
and credit to the Illinois judgment sued on, is final, and
certainly makes the question “ripe for adjudication” by
the Supreme Court of the United States. Under such cir-
cumstances, the Supreme Court of the United States has
granted writs of certiorari to review such cases. Johnson
v. Muelberger (1951), 340 U.S. 581, 95 L.Ed. 552, 71 S.Ct.
474.
—xcii—
[APPENDIX]
We cannot agree with plaintiff in error that the re-
fusal to stay the mandate will not prejudice the defendant
in error. It is, of course, intended by the plaintiff in error
that it should injure and prejudice the defendant in error.
Plaintiff in error again makes reference to the ancillary
action brought by Gannon against Britton and others in
the United States District Court for the Eastern District
of Oklahoma, which suit was heretofore referred to by
plaintiff in error in his motion for oral argument in this
case, therein stating that the suit in the federal court was
brought against W. R. Britton, Margaret Carroll Britton,
and Carroll Oils, Inc., and the purpose and necessity of
such suit was explained by the defendant in error in his
response to that motion for oral argument, wherein it was
shown that the said W. R. Britton, after judgment was
obtained in the District Court of Pontotoc County, Okla-
homa, in this case, organized an Oklahoma corporation
known as Carroll Oil, Inc., and transferred valuable pro-
ducing oil leases to the said corporation, in order to hinder,
delay and defraud the said Mark Gannon in the collection
of his judgment; that it was necessary for the defendant
in error, Mark Gannon, to take timely action in regard to
said fraudulent transfer, to avoid the running of the statute
of limitations against this defendant in error, and the said
plaintiff in error now seeks to avoid the stay of the man-
date in this case so that he can take the position in the
Federal court action that ne judgment has been obtained
against the plaintiff in error in the State of Oklahoma,
so that there will be no basis for the suit in the Federal
District Court in the nature of a creditor’s bill, and he seeks
to have this action taken, before the validity and effective-
ness of that judgment can be properly tested by the Su-
preme Court of the United States, the only court that can
finally determine whether or not the Illinois judgment in
question is entitled to full faith and credit in the courts
of the State of Oklahoma.
—xciii—
[APPENDIX)
The stay of the mandate at this time will not disrupt
the orderly process of this court, nor will it prejudice the
plaintiff in error further than to afford to defendant in
error a full and complete and final determination of the
Federal question involved in this case, and finally deter-
mine for both plaintiff in error and defendant in error,
whether or not the Illinois judgment involved, is entitled
to full faith and credit in the courts of the State of Okla-
homa.
WHEREFORE, the defendant in error respectfully
prays that the mandate and execution thereof be Stayed
until the Federal question involved can be finally deter-
mined in an orderly manner by the Supreme Court of the
United States.
McARTHUR & ORTON, Attorneys for
Defendant in Error,
By C. L. McArthur
CERTIFICATE OF SERVICE
C. L. McArthur, one of the attorneys for the defendant
in error above named, states that he served the above and
foregoing reply upon the plaintiff in error, W. R. Britton,
by mailing a copy thereof to Busby, Stanfield, Crawford,
Busby & Deaton, Attorneys for said plaintiff in error, this
29th day of June, 1955, at their office in the American
Building, Ada, Oklahoma.
C. L. McArthur
—xciv—
[APPENDIX]
EXHIBIT 20
In THE UNITED States District COURT FOR THE
EASTERN DiIstrRICT OF OKLAHOMA
Mark Gannon, Plaintiff, )
Vv. ) Civil Action
W. R. Britton, Margaret Carroll ) No. 3881.
Britton, and Carroll Oil, Incor- )
porated, a corporation, Defendants, )
ORDER
Now on this Ist day of July, 1955, this matter coming
on to be heard upon the motions of the defendants W. R.
Britton and Margaret Carroll Britton for summary judg-
ment, and on the motion of the plaintiff Mark Gannon to
dismiss the counter-claim filed by the defendant Carroll
Oil, Incorporated, and for other relief; the plaintiff appear-
ing by his attorney C. L. McArthur of the firm of McArthur
& Orton; and the defendants and each of them appearing
by their attorney J. W. Crawford of the firm of Busby,
Stanfield, Crawford, Busby & Deaton; and the court having
heard the argument of counsel, and being fully advised as
to the condition of the record in the case of W. R. Britton,
plaintiff in error, v. Mark Gannon, defendant in error,
pending in the Supreme Court of the State of Oklahoma,
and it appearing that the reversal of the judgment of the
District Court of Pontotoc County, Oklahoma, on which
the cause of action before this court depends, is subject
to review by the Supreme Court of the United States, there
being involved the question of granting full faith and credit
to the Illinois judgment on which suit was brought in the
District Court of Pontotoc County, Oklahoma, an appeal
from which is now pending in the Supreme Court of the
State of Oklahoma, and the court finds that all action on
the motions for summary judgment should be stayed
pending the final adjudication as to the judgment rendered
by the District Court of Pontotoc County, Oklahoma, and
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[APPENDIX]
which was appealed to the Supreme Court of the State
of Oklahoma; and the court further finds that inasmuch as
action on said motions for summary judgment should be
stayed, that all other proceedings in this cause should also
be stayed until the final and complete determination as
to the validity of the judgment of the District Court of
Pontotoc County, Oklahoma.
IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED that all further action in this cause be stayed
until the final adjudication as to the validity of the said
judgment in the District Court of Pontotoc County, Okla-
homa, in the case of Mark Gannon v. W. R. Britton.
Eugene Rice, Judge.
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