Quirk v. Rooney

This action was brought for the purpose of having the court decree that the plaintiff is the owner of an undivided one-ninth interest in certain lands described in the complaint, and that defendant Mary Rooney holds the title' thereto in trust for plaintiff. Findings were filed and judgment entered as prayed for in the complaint. This appeal is by Mary Rooney from th'e judgment on the judgment-roll and a bill of exceptions. The facts and history of this litigation, so far as material here, are as follows: One Bryan Lynch resided in Humboldt county and died there, being ¡the owner of the lands described in the complaint at the time of his death. He died intestate, leaving no wife, children, father, or mother, hut leaving a sister, Catherine Clark, living in this state. The estate was administered, and during the administration Catherine Clark made a deed of conveyance of the estate to her daughter, Mary Rooney, the appellant. Upon final settlement of the estate, and upon proper notice as require^. by statute, the court found as a fact that Catherine Clark was the only

“It is substantially claimed that upon Mary Rooney’s evidence, given upon the hearing of the application for the decree of distribution, the court found as a fact that her mother was entitled to the whole estate as the only heir; that Mary Booney was mistaken as to the fact of her mother being the only heir, inasmuch as there were other heirs, and that, by reason of her mistake of fact in so testifying, the court rendered a wrong judgment; and that Mary Booney thereby gained the entire estate by a mistake of fact, and should be declared to be an involuntary trustee of two-thirds thereof, as provided by the terms of the section just quoted.

“It is insisted that the interveners, in asking this relief, are not attacking the decree of distribution, but are se'eking relief thereunder. Many eases are cited to support this contention, but they fall short of the mark and present no question similar to the one here involved. The court, in hearing the petition for the distribution of the estate of Bryan Lynch, deceased, upon legal and proper notice to the entire world, took evidence as to who were the h'eirs of his estate, entitled to take 'the sam'e, and thereupon made a finding of fact that Catherine Clark was a sister and the only heir, and, as a conclusion of law, held that said Catherine Clark was entitled to the entire estate. That decree has never been modified, nor even assailed, and, as far as any collateral attack is concerned, it piust stand forever as binding and conclusive upon the question of heirship. Whatever counsel may say as recognizing the validity of the decree, and claiming under it, is not strictly tfue, for that decree declares-as a fact that Catherine Clark is the only heir of Bryan Lynch; and to give the interveners the relief here sought that finding must be first set aside as untrue, and that cannot be done in this action. If such a thing could be done, the stability of judgments and decrees would b,e a thing of the past. Decrees of distribution would be as -instable as the sands, for omitted heirs from such decrees would be seeking to have involuntary trusts declared ther'eon at most inopportune times, and in direct opposition to the law as declared by section 1908 of the Code of Civil Procedure pertaining to the conclusiveness and finality of judgments and decrees.?’

The decision, therefore, is res judicata as to the rights of the plaintiff in this case as one of the heirs of Nancy Plunkett, deceased.

Upon the cas'e being remanded to the court below on November 7, 1896, the action, as between the last-named intervenors and the appellant here, was again submitted upon the testimony introduced at the former trial, findings waived and judgment ordered December 23, 1896, that the intervenors, the children of Nancy Plunkett, deceased, take nothing by their complaint in intervention, and that appellant have judgment for her costs as to them. On January 22, 1897, an interlocutory decree in partition was accordingly entered, and -on Sep

The court below found the facts in substance as herein stated, but undertook to differentiate the present ease in some respects from the action in which the former final judgment had been entered, and held that the matter was not res judicata. In this we think the learned judge was in error. By the former decision of this court the decree of distribution in the estate of Bryan Lynch, deceased, was held final and conclusive as to the plaintiff here. Upon the cause being remanded, the court below followed the law as laid down by this court, and upon the same pleadings and evidence made its decree.that the heirs of Nancy Plunkett (including plaintiff) were not 'entitled to any relief. The interlocutory decree was entered January 22, 1897, and was appealable. (Code Civ. Proc., sec. 963, subd. 2.) Unless appealed from within sixty days after entry it became final and conclusive of the rights of the parties to it. (Code Civ. Proc., sec. 939, subd. 3; Lorenz v. Jacobs, 53 Cal. 24 .) An interlocutory decree cannot be reviewed on appeal from a final judgment. (Code Civ. Proc., sec. 956; Barry v. Barry, 56 Cal. 10 .)

The present action is similar in all respects to the former one in which the interlocutory and final judgments were entered. The parties in the present action were parties to the former, the property involved is the same, the cause of action —to wit, the right of plaintiff to a part of the estate of Bryan Lynch, deceased—is the same; and the plaintiff here is prosecuting this suit in her own right, as she did by her complaint in intervention in the former suit. In the opinion' of the learned judge of the court below h'e said, in speaking of the bar of the former judgment: “The parties are the same, and the subject matter is the same; the only question is as to the

In Aurora v. West, 7 Wall. 84 , 102, the rule is thus stated: “But where every objection urged in the second suit was open to the party within the legitimate scope of the pleadings in the' first suit, and might have been presented in that trial, the matter must be considered as having passed in rem judicatam, and the former judgment in such case is conclusive between the parties.”

We fully appreciate the fact that if there had been no final decree of distribution in the estate of Bryan Lynch, deceased, and no former adjudication, the plaintiff’s claim would be meritorious. But courts must follow general and well-established rules of law applicable to all cases and for the benefit of all. If plaintiff, through negligence in not properly presenting her case ait the former trial, has lost her right to the property in controversy, it is a hardship, but on'e from which we have no power in this action to grant relief. To adopt any other rule than the one we have followed would open a “Pan

The judgment is reversed and th-e cause remanded, with directions to the lower court to enter judgment for appellant upon the findings.