Delgado y Ortiz v. First National Bank

OPINION OF THE COURT. MANN, J. 1 This cause was tried below by Hon. J. R. McFie, judge of the First judicial district, sitting in-the place of Hon. Wm. J. Mills, judge of the district court of San Miguel county, who was incapacitated from sitting at the trial of this cause by reason of having been counsel for the defendant, Antonio Delgado y Ortiz, in a cause involving the same issues. It has long been a settled rule of this court, that it will not disturb the findings of fact of the trial court, where there is sufficient evidence to support such findings. A careful reading of all the evidence in this case convinces us that the trial court was not only justified in his findings- that the deed from Hilario Romero and wife and Benigno Romero and wife, to Antonio Delgado y Ortiz was fraudulent and void as to creditors of the firm of H. Romero & Bro., but that no other reasonable conclusion could be gathered from the evidence. The confidential relations which Ortiz bore to the firm, his relationship to the parties, and the absurdity of his claim as to the manner in which he acquired the money to buy the property in question, all point to his guilt as a party to the fraud. His testimony shows that he commenced working for this firm at the age of seventeen or eighteen years at a salary of twenty dollars per month, that he worked for them in the stores at Las Vegas and Los Alamos continuously for ten years or so, at wages from twenty to seventy-five dollars per month, receiving the latter sum for only two or three years; out of these wages he claims to have saved money and invested in cattle until at the date of the deed he was able to pay six thousand, three hundred dollars for this ranch. The manner of making the payments as he relates them, were, to say the least, peculiar; he claims to have had over one thousand dollars at a time in his trunk, in a room at the rear of the store, which he had saved from bis wages, his aunt also kept a large sum of money for him in a trunk or box, as be claims, in her residence. The cattle which he claims to have traded the Romeros as part payment for the ranch can not be traced and the records show that no such cattle were shipped by the Romeros; in fact, the whole transaction appears false and fraudulent upon the testimony of all parties to the deed. No account was kept in the books of the firm of the sale of the ranch to Delgado or of the payments made by him to Romero, and the trial court finds that the purported memorandum held by Delgado, of which the Romero Brothers held a duplicate, was made for the sole purpose of building up evidence and was fraudulent and false. The record in this case is voluminous and it is impossible to quote all the inconsistencies and absurdities of Delgado’s testimony, -and those of bis cousins in support of bis contention, but we are entirely satisfied with the findings of the trial court, which appear in the record, and they will, therefore, not be disturbed. 2 Appellant’s counsel devotes a large portion of bis brief to the question of res judicata, the contention being that the verdict of the jury in the attachment case of Bernheim, Bauer & Company v. II. Romero & Bro., finding the last named firm not guilty of “fraudulently concealing and disposing of their property and effects so as to binder, delay and defraud their creditors” is res judicata as to the plaintiff in this 'case on the question of fraud in the deed to Delgado y Ortiz. 3 We can not concur in this contention for several reasons: First, because no such issue is raised by the pleadings in this cause and the weight of authority is to the effect that the defense of res judicata in a suit in equity must be pleaded or it will be deemed waived. 24 Am. and Eng. Ency. of Law (2 Ed.), 836; Biglow on Estoppel (5 Ed.), 701; Simple v. Ware, 42 Cal. 619; Simple v. Wright, 32 Cal. 668; Cherry v. York (Tenn.), 47 S. W. 184; 9 Ency. Pl. and Pr., 616; Turley v. Turley, 1 Pickle (Tenn.) 251, 1 S. W. 894; second, because no judgment, final order or decree of any court of competent jurisdiction is relied upon, but merely tbe verdict of a jury, and that upon a question ancillary to tbe main issue. “The weight of authority supports the view that it is not the finding of the court or the verdict of the jury rendered in an action that concludes the parties in subsequent litigation, but the judgment entered thereon, for the verdict when rendered is under the control of the court in which the action was tried, and may be set aside for good reasons, and hence it is necessary, in-order to support the plea of res judicata, that a judgment, decree or final order should have been actually rendered and entered in the prior action or suit.” 24 Am. and Eng. Ency. of Law, 792; Boulding v. Phelps, 30 Fed. 547; In re Matter of Hulbert Estate, 57 Cal. 257; Biglow on Estoppel (5 Ed.), 51; third, there is no privity between the parties to the case of Bernheim, Bauer & Company v. Romero Bros. and the parties to this cause. “Absolute identity of interest is essential to privity. One whose interest is almost identical with that of a party but who does not claim through him, is not a privity with him. The fact that two parties, as litigants in two different suits, happen to be interested in proving or disproving the same facts, creates no privity between them.” 24 Am. and Eng. Ency. of Law, 747, citing Spencer v. Williams, L. R. 2 P. D. 230; Sturbridge v. Franklin, 160 Mass. 149; Buelen v. Shamnon, 3 Gray 387. For reasons given the judgment of the lower court is affirmed. Parker, Baker and Pope, JJ., concur. McFie, A. J., having tried the case below, and Mills, C. J., being incapacitated by reason of having been counsel for one of the parties in another case involving the same issues, took no part in this decision.