Markham v. Dugger

Opinion by

AMES, C.

The plaintiff, Markham, is a Cherokee freedman. In 1895 and 1896 he became indebted to one Clem Hayden. In 1900 Playden recovered judgment against the plaintiff, and in July, 1906, execution was issued on this judgment and levied on the land in controversy. The land was sold to the defendant. On July ST, 1908, the defendant filed an action of ejectment in the district court of Mayes county against the plaintiff, seeking to recover the land in controversy, and on January 5, 1909, recovered judgment against this plaintiff (the defendant in that case), and thereafter, pursuant to said judgment, the sheriff dispossessed this plaintiff. Thereafter, on the 7th day of May, 1909, this plaintiff commenced this action of ejectment against this defendant, the plaintiff in that case, alleging that the defendant’s judgment in ejectment was void, because the land in controversy was not subject to liability for the payment of the plaintiff’s debts.

Conceding, without deciding, that this contention is true, it should have been asserted as a defense in the first ejectment case. It does not appear whether it was so asserted or not; but in either event that judgment between these same parties, in the same kind of an action, involving the same land, is res judicata. There is no dispute about the court having had jurisdiction of the persons of both parties. There is no dispute about the court having had jurisdiction of the subject-matter. In fact, the plaintiff in this case invokes the jurisdiction of the court to the same subject-matter; and it is so manhest that, if he has stated a cause of action against the defendant, he would have had a defense to the cause of action brought by the defendant against him in the other case that it is unnecessary to discuss the matter further.

The judgment of the trial court should be affirmed.

By the Court: 'It is so ordered.