Pettis Et Ux. v. McLain , 21 Okla. 521 ( 1908 )

Where a cause is referred to a referee to find and report the facts and conclusions of law to the court, and no bill of exceptions is allowed and signed by him as referee preserving the evidence, it has been repeatedly held by this court that the question of the sufficiency of the evidence to support the findings of the referee cannot be considered. Howe v. City of Hobart, 18 Okla. 243, 90 P. 431;Iralson v. Stang et al., 18 Okla. 423, 90 P. 446; Block v.Pearson, 19 Okla. 422, 91 P. 715; Wichita Mining Improvement Co. v. Hale, 20 Okla. 159, 94 P. 530; Campbell etal. v. Sherman, 20 Okla. 185, 95 P. 238. The evidence not being properly in the record, the only questions that can be considered by this court are those apparent upon the face of the record. The report of the referee must be considered here as having had sufficient evidence to sustain the same in the court below.

The referee finds that on the 23d day of February, A.D. 1898, the plaintiffs began an action in the district court of Kingfisher county, territory of Oklahoma, to set aside a judgment or decree rendered in a foreclosure suit which is attacked in this action on the same grounds, the same parties being joined in this action, and that said proceeding was finally disposed of and determined on demurrer against the contentions of said plaintiffs.

"A judgment upon demurrer may be a judgment on the merits; if so, its effect is as conclusive as though the facts set forth in the complaint were admitted by the parties or established by evidence submitted to the court or jury. No subsequent action can be maintained by the plaintiff if the judgment is against him on the same facts stated in the former complaint. If any court errs in sustaining a demurrer and entering judgment for defendant thereon when the complaint is sufficient, the judgment is nevertheless 'on the merits'; it is final and conclusive until reversed on appeal. Until then the plaintiff cannot disregard it and maintain another action. The effect of a judgment still in force is never diminished on account of any mistake of law on which it is founded." (Freeman on Judgments (4th Ed.) § 267, p. 487).

The referee found that there had been a former adjudication of the same matter upon the demurrer to the petition, and under the allegations of the answer of defendants it was between the same parties. The said decree or judgment having become final, the matter is res judicata, and bars plaintiff from renewing said contention in any other original proceeding between said parties.

The judgment of the court below is affirmed.

All the Justices concur.