Hensley v. Conard

Opinion by LOGSDON, O. The petition in error in this case contains 12 assignments, only three of which are presented and argued in the brief, and in the view taken of this case here it will only be necessary to consider the first assignment of error, which reads: “Said court erred in overruling the motion of plaintiffs in error to vacate, set aside and hold for naught the judgment rendered in said cause and to grant plaintiff in error a new trial.” By their answer defendants presented to the trial court the defense of res adjudicata, and by the reply plaintiffs denied such allegation of the answer. Defendants thereupon filed a motion for judgment on the pleadings, which was sustained by the court and *175 judgment rendered in favor of the defendants. If this plea of res adjudicata is sustained by the record, it is decisive of this case and the judgment of the trial court must be sustained. The record in this case shows that plaintiffs herein filed an action in ejectment against the defendants herein to recover the identical lots described in plaintiffs’ petition herein, alleging, in substance, a failure to pay the purchase price thereof and a consequent forfeiture and a right to possession in the plaintiffs in said action. The contract heretofore set out was directly involved in the ejectment action for the reason that the right of plaintiffs in that action to possession of the .premises depended upon an adjudication by the court that defendants had defaulted in the terms of the contract of purchase. That portion of the prior judgment material to be considered here reads as follows: • ‘fit is therefore ordered, adjudged, and decreed by the court that the plaintiffs take nothing by their action; that the said plaintiffs have no right, title or interest in and to the premises involved in this action, to wit: Lots 12, 13 & 14 in block 12 in' the original town of Morris, Okla. “It is further ordered, adjudged and decreed that the defendant, L. N. Conard, is the true and lawful owner of said premises, and has paid in full the purchase price thereof according to the terms of the contract of sale and purchase set up in the answer of the defendants, and that the plaintiffs received and accepted the notes described in said contract of purchase and sale as payment pro tanto on the purchase price of said premises and all the residue of said consideration has been paid in cash; and the said defendant is entitled to have delivered to her the warranty deed to said premises, which was introduced in evidence in this case, and it is ordered and adjudged that the same be delivered to the said L. N. Conrad for the purpose of registration and as a muniment of title; and if the said plaintiff shall fail to deliver said deed or cause same to be delivered for twenty days from date hereof, or shall fail in lieu thereof to deliver to the said L. N. Conard a general warranty deed conveying to her the premises hereinbefore described, then the said defendant shall be entitled to a certified copy of this judgment, to be recorded in the office of the register of deeds of Okmulgee county, as a muniment of title and when so recorded the same shall have the force and effect of a warranty deed in fee simple from the plaintiffs to the said L. N. Conard. It is thus seen that in the ejectment action the court had before it and construed tlie contract of sale and purchase now pleaded in this action and the same set of notes described in said contract and now made the basis of this action. In the ejectment suit the court adjudged and determined that that was no agreement upon the part of the defendants that L. N. Conard should indorse and become liable upon said notes, but that the same were received and accepted by the plaintiffs at their face value as' a payment pro tanto upon the purchase price of said property, and found also that the additional cash consideration had been paid in full. These findings involve the identical issues presented in the present action in which it is sought to recover a personal judgment against thé defendants for the face value of said notes as indorsers and ' guarantors thereof. “A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a court of competent jurisdiction, is conclusively settled by the judgment therein so far as concerns the parties to that action and persons in privity with them, and can not be again litigated in any future action between such parties or privies, in the same court, or in any other court of concurrent jurisdiction, upon the same or a different cause of action.” Comanche Ice & Fuel Co. v. Binder & Hillery, 70 Okla. 28 172 Pac. 629; Uncle Sam Oil Co. v. Richards, 73 Oklahoma, 175 Pac. 749; Deming Inv. Co. v. Shannon, 62 Okla. 277, 162 Pac. 471; Cressler v. Brown, 79 Okla. 170, 192 Pac. 417; Johnson v. Gillette, 66 Okla. 308, 168 Pac. 1031; Brown v. Calvert, 57 Okla. 364, 157 Pac. 284. Plaintiffs seek to avoid the effect of the rule above stated in this jurisdiction by insisting that their reply raised an issue of fraud which entitled them to go to the jury. Their allegation as to the nature of the fraud alleged to have been perpetrated is, in substance, that defendants in the ejectment action, who are defendants in this action, fraudulently defended that action on the ground that plaintiffs had only to sue the makers of said notes and recover judgment for the amounts thereof before the security of said notes had become dissipated and lost, and plaintiffs further allege: “That they are entitled to have said judgment and decree rendered in said cause No. 8742 set aside and held for naught, or at least modified to such extent as will permit the plaintiffs to recover judgment in this cause as prayed for in their petition, by reason of the fact that said defendant has willfully perpetrated said fraud upon the jury, the court and these xfiaintiffs, as aforesaid in said cause No. 8742. “Plaintiffs further allege that they had no *176 knowledge or information that the said defendant, A. P. Conard, would testify to said false testimony given in said cause and that plaintiff had no opportunity to prove said testimony was false in the former trial of said cause. In the case of Thigpen v. Deutsch, 66 Okla. 19, 166 Pac. 901, this court has announced the rule in this jurisdiction contrary to the contention of plaintiffs. The defense set up in the prior action No. 8742 put plaintiffs on notice of the contentions which the defendants would make upon the trial of said cause, and it is well settled in this jurisdiction that fraud which will vitiate a judgment must be fraud extraneous of the record and which would constitute an imposition upon the court or its process, and that fraud to vitiate a judgment can not be predicated upon the testimony adduced upon the trial of the cause. “False evidence or perjury alone, relative to an issue tried, is not a sufficient ground for vacating or setting aside a judgment; the fraud which will authorize the court to vacate a judgment must be extrinsic or collateral to the issues tried in the cause wherein the attacked judgment was rendered; it must be such fraud of the prevailing party as to prevent the other from having a trial of the issues.” The kind and character of fraud alleged in the reply of plaintiffs was therefore insufficient to raise any issue upon the defense pleaded in defendants’ answer. This renders it unnecessary to consider the other assignments of error presented in the briefs as the record shows that the judgment in the ejectment action, No. 8742, was rendered between the same parties in reference to the same subject-matter, and upon the identical issues sought to be raised by plaintiffs’ petition herein. The judgment of the trial court sustaining the motion of defendants for judgment on the plea dings should be in all things affirmed. By the Court: It is so ordered.