Ellis v. Caruthers

HART, J., (after stating the facts). The judgment of the trial court was wrong. A judgment is conclusive only between the parties and their privies. Thompson v. Southern Lumber Co., 113 Ark. 380, and cases cited. Madeline Hightower was not a party to the suit between G. M. Caruthers, administrator of her father’s estate, and Allie V. Hightower, her mother, in which the former sued the latter for the possession of the notes in controversy in this case. She was not a privy in inxeresc to any of the parties to that suit. The notes showed on their faces that they were payable to Madeline Hightower and there is nothing in the record to show that she derived title thereto from her mother. So far as the record discloses, if she had title to the notes, it was independent of her mother, and she was neither a party nor a privy to the suit between the administrator of her father’s estate and her mother for the possession of these notes. She was not bound by the judgment therein. The judgment in that suit was evidence of nothing in the present suit except that it had been rendered. Thompson v. Southern Lumber Co., supra, and Biederman v. Parker, 105 Ark. 86, and cases cited. The plaintiff, however, had no right to maintain this action unless his ward was the owner of the notes or had the right to the possession of them and the burden of proof to establish this fact was upon him. Collin County Grain Co. v. Andrews, 110 Ark. 597. It. was shown by the plaintiff that the notes were made payable to her and that they were in the possession of her mother, with whom she was living before the present suit was instituted, and before the defendant in the present action obtained possession of them. As we have just seen she was not bound by the ruling of the court in the suit between the administrator of her father’s estate and her mother for the possession of these notes, and under the facts just recited, the jury might have inferred that she was the owner of the notes and entitled to the possession of them. Therefore, the court erred in directing a verdict for the defendant, and for that error the judgment must be reversed and the cause will be remanded for a new trial.