Hyma v. Hippler

151 N.W.2d 177, 7 Mich. App. 90, 1967 Mich. App. LEXIS 542

• Court: Michigan Court of Appeals
• Decided: June 13, 1967
• Docket: Docket 1, 1964
• Status: Published

Opinion

Per Curiam.

This is an appeal by plaintiff from a dismissal of his complaint on the ground of res judicata.

Plaintiff, seeking to trace assets, alleged that the sale of property * by Alfred and Mary Hippler on January 7,1949, to Glenn and Helen E. Holmes was a fraudulent conveyance and should be set aside.

This matter was before the Michigan Supreme Court previously in Hyma v. Hippler (1961), 365 Mich 127. There the Court ruled in favor of the defendants, specifically on the question of whether Holmes had notice of a levy against the mortgage when he made Ms mortgage payment. However, the contention now advanced by the plaintiff was put forward and rejected on the ground it was not made an issue in the pretrial statement.

Plaintiff’s view is that since a decision was not made on the “merits” of Ms contention, he should be allowed to bring this subsequent suit. We do not agree. The law of res judicata is clear:

“The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” Gursten v. Kenney (1965), 375 Mich 330 at 335.

Affirmed. Costs to appellees.

Holbrook, P.J., and Fitzgerald and J. H. Gtllis, JJ. concurred.

* The east 40 acres of the northeast fractional quarter of seetion 4, town 1 north, range 3 east, also the southeast quarter of the southeast quarter of section 33, town 2 north, range 3 east of Livingston county, Michigan,