Smith v. Boothe

175 P. 709, 90 Or. 360, 1918 Ore. LEXIS 211

• Court: Oregon Supreme Court
• Decided: October 22, 1918
• Status: Published

Opinions

BENSON, J.

1. We are clearly of the opinion that the demurrer to the complaint should have been sustained. A comparison of the complaint herein with the cross-complaint of these plaintiffs as defendants in the foreclosure suit, discloses at a glance that the facts upon which they relied in the former proceeding are practically identical with those upon which they base their claim for relief herein. The former case was a suit in equity, wherein they called upon the court to make a decree in which should be adjudicated between themselves and the defendants, all of the questions and controversies growing out of the same transactions which they now set out in their initial pleading. At the conclusion of the trial of that contest, they, by their counsel, moved the court for the decree which they obtained. That decree establishes the ownership in the defendant Bichardson of the Lumsden mortgage, not as a trustee for these plaintiffs, but as the absolute owner. It further determines his right to a repayment of the $2,000 which he had paid to plaintiffs, and also awards him the process of the court for the collection of these claims by ordering an execution and sale thereon.

Not a single act is alleged as occurring after the trial of the foreclosure suit, except the alleged conduct of the defendants in slandering the title to the real property, and thereby preventing a redemption. As to this phase of the case it may be said that the plaintiffs expressly disclaim any effort or intent to proceed herein as for slander of title, and if it were otherwise, the allegations in relation thereto are wholly insufficient to justify any recovery upon that theory.

2. The law is well settled that a judgment or decree rendered upon the merits is a bar to a subsequent action or suit between the same parties upon the same claim, as to every matter that was or might have been litigated in the action in which it was obtained: Colgan v. Farmers & Mechanics’ Bank, 69 Or. 357 (138 Pac. 1070), and cases there cited.

Appellant urges the consideration of many authorities upon the subject of an attorney’s duty to employ the utmost good faith in his dealings with a client’s property, but that subject is not before us.

We have read the evidence in this case with great care, but see no necessity for discussing it, further than to say that if the testimony of the plaintiffs themselves, in cross-examination, had been before the court in the trial of the foreclosure suit, it could never have found that defendants had been guilty of any bad faith.

The decree of the lower court is affirmed.

Affirmed.

McBride, C. J., and Burnett and Harris, JJ., concur.