Hill v. Cole , 192 Okla. 476 ( 1943 )

I am of the opinion that if the pleadings are sufficient to raise an issue of fact as to former adjudication, the cause may not be disposed of on objection to the introduction of any evidence. If issues of fact have been joined, the defense of res judicata cannot be heard on motion to dismiss. Objection to the introduction of evidence would be governed by the same rule.

In Wade v. Hope Killingsworth, 89 Okla. 64, 213 P. 549, when considering the propriety of hearing the defense of res judicata on motion to dismiss, the court said:

"In regard to the appeal in the instant case, it is sufficient to say: That the plea of res adjudicata is a defensive matter and must be pleaded and proved the same as any other defense, and cannot be tried upon a motion to dismiss after the issues are framed and a question of fact is presented for determination on said issue. (sic) That the trial court in this proceeding erred in attempting to try the facts in the case upon a motion to dismiss and thereby determine whether the plea of res adjudicata was applicable."

The rule was there stated as follows:

"The plea of res adjudicata is a defensive matter and must be pleaded and proved the same as any other defense, and it is error to hear this defense upon a motion to dismiss, after the issues are joined and a question of fact is raised by the pleadings, upon said plea of res adjudicata."

Many expressions have been made by the courts concerning the exact function of an objection to the introduction of any evidence. It seems that in the absence of a previous demurrer to the particular pleading, such an objection as a challenge to the sufficiency thereof will demand a somewhat different construction of the allegations of the pleadings from that accorded under a like objection where, as here, a demurrer has been interposed and overruled. Bronough v. Jones,173 Okla. 386, 49 P.2d 715; Breshears v. Wright, 180 Okla. 553,71 P.2d 455.

Where general demurrer to a pleading has been overruled, an objection to the introduction of any evidence under the particular pleading is equivalent to a demurrer. Schmeusser v. Schmeusser, 181 Okla. 18, 72 P.2d 378.

It is true that the burden is upon the party relying on former adjudication to plead and prove the same. But where, as in this case, the answer is sufficient in its allegations of res judicata, if the reply fails to place in issue at least one of the essential elements of res judicata, it is demurrable. The essential elements of such a plea are stated in Howe v. Farmers Merchants Bank, 129 Okla. 232, 264 P. 210, as follows:

"To constitute a good plea of res adjudicata, there must be the same parties, the same subject-matter, the same issues relating to the same subject-matter, and the capacity of the parties must be the same as to the subject-matter and the issues, and the burden of establishing these facts rests upon the party who alleges a former adjudication."

In proving such allegations the defendant sustains the burden placed on him; he thereby establishes a prima facie defense.

Here, the plaintiff admitted all the essential elements of res judicata necessary to a prima facie defense, but sought to avoid the judgment for want of jurisdiction in the court from the standpoint of venue, and to impeach the same on equitable grounds for fraud. The court rendering the judgment is presumed to have had jurisdiction; and fraud is never presumed. If the reply was sufficient in its allegation of want of jurisdiction, or sufficient in its allegations of fraud to constitute a direct attack in equity, then the trial court erred in sustaining the objection to the introduction of any evidence under said reply, and in dismissing the cause.

It appears that the former action was filed in the Henryetta division of the superior court of Okmulgee county, and, without formal transfer of the cause, the judgment was rendered by the court while in session in the city of Okmulgee during a term legally set for that city. The judgment was an agreed one, based on compromise, with all parties agreeing to the procedure. The personnel of the court was the same in both divisions.

In support of the contention that the court was without power to render the former judgment in the above circumstances, plaintiff cites American Fire Ins. Co. v. Pappe, 4 Okla. 110,43 P. 1085; Dunn v. Carrier, 40 Okla. 214, 135 P. 337, and certain authorities from other jurisdictions.

The general rule as recognized in the cited cases is that even by agreement the parties cannot confer jurisdiction on a court to hear and determine a cause pending in another jurisdiction, although the judge may be the duly constituted judicial officer of both jurisdictions.

But in the former action here under consideration the judgment was rendered by the court in the territorial jurisdiction wherein the action was filed. The statute creating the superior court of Okmulgee county created but one court with authority to hold terms at separate places in the same jurisdiction. The situation is unlike that of the district court judicial district where each of the counties thereof is a separate venue, with the judge of the district presiding over the court.

No reason exists why litigants by agreement may not submit their cause to the court at any one of several places designated by law for holding such court in the same jurisdiction, regardless of which of the designated places the action may have been filed. As to this question I agree with the majority opinion.

The remaining question to be considered is the sufficiency of the allegations of fraud.

The purpose of this charge was to impeach the former judgment for fraud and collusion allegedly practiced by plaintiff's own counsel and counsel for defendant in procuring the agreed judgment.

A judgment may be vacated in equity for fraud extraneous to the issues resulting in imposition on the court and preventing the complaining party from having his interests presented and judicially considered and determined. Park v. Continental Oil Co., 184 Okla. 314, 87 P.2d 324. The rule is there stated as follows:

"The fraud which vitiates a judgment and which will authorize a court of equity, in an attack thereon, to vacate it, is fraud extraneous to the record by which the court was imposed upon in the proceeding, and by which the complaining party was prevented from having his interest fairly presented and considered by the court."

The fraud complained of consisted of certain alleged false statements made to plaintiff by her own counsel, and concurred in by defendant's counsel, designed to overreach her and to persuade her against her expressed will to agree to the judgment which, it is alleged, was wholly inadequate. It was charged that plaintiff's counsel, who were personally interested by reason of their contingent fee lien, informed plaintiff that any judgment that might later be obtained against defendant on trial of the cause could never be collected for certain specified reasons, and that if she expected to obtain anything at all on her claim, she should accept defendant's offer; that said statements were false, and known by her own and defendant's counsel to be false. There were other similar allegations, all challenging the good faith of counsel aforesaid.

The foregoing allegations were sufficient in equity to constitute the type of fraud that will vitiate a judgment. If the allegations represented the true facts, plaintiff was fraudulently prevented from presenting her cause for judicial consideration and determination. Such collusion as here charged would go to the very foundation of the judgment. A fiduciary relationship existed between plaintiff and her attorneys. According to her allegations, that relationship was violated pursuant to a plan to deprive her of her legal rights, and that the defendant's attorneys were in accord therewith. Equity affords relief against judgments rendered under such circumstances. 34 C. J. 474, § 742.

Plaintiff has tendered to defendant the amount paid out under the judgment, and now seeks to avoid same so that she may properly present her cause. She is entitled to an opportunity to establish her allegations of fraud.

For these reasons, I respectfully dissent.