Appendix — Gannon v. Britton

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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

—xXcvV—

[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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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