§ 1435. Special proceedings

Where the plaintiff in ejectment relied on a deed absolute on its face, which the defendant showed was only a mortgage, a finding that no part of the mortgage had been paid was not conclusive in a subsequent action to foreclose it.87

A judgment in ejectment, finding that the widow, claiming under the laws of descent, and the devisees, are tenants in common, does not estop the devisees from claiming the full title to the same land under the will, in a subsequent action by the widow for partition as tenants in common.88

Where the plaintiff in ejectment has voluntarily dismissed his action after judgment had been set aside, and has thus lost a right to maintain such an action, he cannot by taking possession of the land while temporarily unoccupied assert his claim of title by way of defense.89

A judgment in attachment, reversing orders sustaining defendant's motion to dissolve the attachment because the affidavit was untrue, and sustaining a motion of an interpleader claiming ownership of the land attached, is final against the attachment defendant that the attachment was rightfully issued, but is not conclusive upon the issue between plaintiff and the interpleader as to the ownership of the property.90

§ 1436. Form of judgment

A judgment will not ordinarily support a plea of res judicata until it has been entered.91

Unnecessary recitals in the journal entry of an order dismiss

former owner held final, not subject to be overcome by proof of payment prior to judgment. Moline Elevator Co. v. Loewen Real Estate & Investment Co., 57 Okl. 478, 157 P. 99.

87 Mitchell v. Insley, 7 P. 201, 33 Kan. 654.

88 In ejectment by a widow against the devisees, she claimed the land in controversy under the laws of descent, while defendants claimed it under the will. The court found them to be tenants in common, and rendered judgment for defendants. Held, that the judgment does not estop defendants from claiming the full title to said land under the provisions of the will, in a subsequent action by the widow for partition as tenants in common. Neuber v. Shoel, 55 P. 350, 8 Kan. App. 345.

89 Bank of Topeka v. Sadler, 131 P. 585, 89 Kan. 321.

90 Western Grocer Co. v. Alleman, 106 P. 460, 81 Kan. 543, 27 L. R. A. (N. S.) 620, 135 Am. St. Rep. 398, rehearing denied 106 P. 997, 81 Kan. 900. 91 De Watteville v. Sims, 44 Okl. 708, 146 P. 224.

ing an action to enjoin, will not be res judicata in a subsequent action at law for damages.92

An order allowing a dismissal without prejudice, after sustaining a demurrer to the evidence, was in effect setting aside the order sustaining the demurrer, so that it was not res adjudicata in a subsequent suit between the same parties as to the same subject-matter.93

§ 1437. Confession or consent

The rule that a judgment is conclusive as to every matter that might have been pleaded or given in evidence obtains as to a judgment by confession."4

Where the pleadings include the subject-matter on which the court made the finding that the parties agreed in open court that certain matters had been settled between them, such finding will be held, in a subsequent action between the same parties concerning the same subject-matter, to have been an adjudication, though no evidence was introduced in the former action.""

A judgment by default is as conclusive on the parties to the action as any other judgment."

96

92 Miller v. Phillips, 141 P. 297, 92 Kan. 662.

93 Hutchison v. Brown (Okl.) 167 P. 624.

94 Farmers' State Bank of Arkansas City, Kan., v. Stephenson, 102 P. 992, 23 Okl. 695.

95 Townsdin v. Shrader, 18 P. 186, 39 Kan. 286.

96 Johnson v. Jones, 51 P. 224, 58 Kan. 745; Seattle Nat. Bank v. School Dist. No. 40, 55 P. 317, 20 Wash. 368.

A plaintiff in possession of land obtained a judgment against a nonresident defendant, on service by publication only, and without his appearance in court. Afterwards defendant in such action brought an action against the former plaintiff. Held that, in the trial of such subsequent action, the judg ment in the first action is conclusive of the rights of the parties to the land in dispute. Venable v. Dutch, 15 P. 520, 37 Kan. 515, 1 Am. St. Rep. 200.

Judgment by default, on actual notice to defendant, is as conclusive against him on every matter admitted by the default as if he had personally appeared and contested plaintiff's rights. Garrett Biblical Institute v. Minard, 108 P. 80, 82 Kan. 338.

Where, on an appeal from an allowance by the county commissioners of a claim for which a county warrant was issued, the claim was adjudged void, such adjudication is res adjudicata and conclusive against the holder of the warrant, where the original payee, as well as the present holder, knew of the

In a foreclosure suit against an alleged mortgagor and his grantee, who contends that the mortgage is a forgery, a decree by default against the mortgagor is not res judicata as to the grantee."7

§ 1439. Judgment on motion

Where, after judgment, a motion is made in regard thereto, due notice is given, the parties appear, the question is distinctly presented and decided, and time given to make a case for review, the movant cannot treat such decision as a nullity, and, without leave to renew it, or showing of additional facts, relitigate the exact question then decided.98

A judgment discharging an attachment, on the ground that the property seized was exempt, is not res judicata in a subsequent direct proceeding to subject the property to the judgment rendered in the action in which the attachment issued.""

The decision on a motion to discharge from an attachment certain property, claimed by the maker of the motion under a chattel mortgage executed in his favor by defendant in the action, on the ground that his lien is prior to that of the attachment, is not conclusive, and the same subject-matter may be investigated in a subsequent action brought by the mortgagee to recover possession of the same property.1

§ 1440. Erroneous judgment

A judgment is no less conclusive because it is based upon a mistake of law.2

Whether there is estoppel by a judgment depends on whether there has been a judicial determination of a fact and not on what evidence or by what means the determination was reached.3

appeal, and had an opportunity to assert their rights, but did not appear. Crawford v. Board of Com'rs of Noble County, 58 P. 616, 8 Okl. 450.

97 Montgomery v. Road, 8 P. 253, 34 Kan. 122.

98 Board of Com'rs of Wilson County v. McIntosh, 1 P. 572, 30 Kan. 234. ** Shelby v. Ziegler, 98 P. 989, 22 Okl. 799.

2 National Surety Co. v. S. H. Hanson Builders' Supply Co., 64 Okl. 59, 165 P. 1136.

McDuffie v. Geiser Mfg. Co., 138 P. 1029, 41 Okl. 488.

DIVISION V-PERSONS CONCLUDED

§ 1441. Identity of persons-In general

The conclusiveness of a judgment, as between the plaintiff and a defendant in the action, is not affected by the fact that there were other parties defendant who were bound by the judgment.*

The holders of the legal title to land are bound by judgments rendered in actions of ejectment brought against their tenants of which they are notified and which they defend, and writs of ouster may be awarded against them and against all persons in possession of the land claiming under them."

A decree will not ordinarily affect the rights of a person without notice or knowledge of the pendency of an action, though he is in like situation as plaintiff.®

A plea of res judicata is not barred because in a subsequent action others are joined as defendants."

The fact that an original defendant's motion to dissolve an attachment was overruled does not preclude such motion by one who subsequently interpleads as defendant.8

4 Peterson v. Warner, 50 P. 1091, 6 Kan. App. 298.

Failure, in an action on purchase-price notes by a person other than the payee, to interpose the defense of breach of warranty, though the notes are nonnegotiable, will not prevent the maker from maintaining an action against the payee for damages for breach of the warranty. Delaney v. Great Bend Implement Co., 98 P. 781, 79 Kan. 126.

5 Crane v. Cameron, 81 P. 480, 71, Kan. 880; Same v. Peninger, Id.; Cameron v. Crane, Id.; Peninger v. Same, Id.; motion to retax costs granted 87 P. 466.

In a suit by a beneficiary of an express trust against the trustee to enjoin a sale of lands held by the latter for conversion into money to pay debts, the bill alleged that it was filed on behalf of the complainant and other creditors, likewise situated, who desired to avail themselves thereof. Held, that a final decree did not affect the rights of a beneficiary in the trust, though in a like situation as complainant, who was without notice or knowledge of its pendency. Holderman v. Hood, 78 P. 838, 70 Kan. 267.

7 Davis v. Bolon (Okl.) 177 P. 903.

8 Merchants' Nat. Bank of Kansas City v. Kopplin, 42 P. 263, 1 Kan. App. 599.

Proceedings against an executrix, who is also the sole devisee of the land belonging to testator, are binding on the executrix as devisee."

Where one with whom decedent had contracted to leave property brings his action against the executor and beneficiary under decedent's will to determine ownership of the residue after payment of the debts, a judgment against the beneficiary is final and binding on him in the final distribution of the estate.1o

A final judgment canceling a contract is res judicata in a later suit on the same contract as to a person who, though not a party to the former suit, caused it to be brought, verified the petition, and accepted the benefits of a temporary injunction issued therein.11

An injured person cannot maintain an action against an insurance company on his judgment against the employer, to whom a policy of indemnity had been issued, though the insurance company defended for the employer against his claim.12

The owner of several judgments against a board of education is not concluded by a judgment against their validity in a suit by the board against its treasurer to mandamus him to pay the judgments in which their dormancy was directly involved, though the owner assumed the defense of the suit.18

Where the nonresident executrix of a nonresident decedent is also the sole devisee of the land belonging to testator, and situated in the state, and where the land is levied on in attachment against the executrix in that capacity, such proceedings bind defendant as devisee. Heyl v. Donifelser, 54 P. 1059, 59 Kan. 779, affirming judgment Donifelser v. Heyl, 52 P. 468, 7 Kan. App. 606.

10 Harris v. Morrison, 163 P. 1062, 100 Kan. 157.

11 Rivers v. School Dist. No. 51 of Noble County (Okl.) 156 P. 236.

12 An indemnity policy provided that, if an action was brought against the insured by an injured employé, the insurance company might defend, and in an action by an employé in which judgment was rendered against the insured the insurance company made a defense. Held, that the employé could not maintain an action on the judgment against the insurance company, and the fact that the insurance company defended against the employe's claim did not estop it from denying the liability to the employé. Carter v. Etna Life Ins. Co., 91 P. 178, 76 Kan. 275, 11 L. R. A. (N. S.) 1155.

13 In re Board of Education of City of Perry, 130 P. 951, 35 Okl. 733.