Putnam v. Clark

The opinion of the court was delivered by Beasley, C. J.

The purpose of this suit in chancery was to restrain a suit at law brought by Adah A. Putnam, the appellant, against the-respondent, Lydia A. Clark. The equity in the bill consists in the fact that the matter attempted to be drawn in question in the-legal action had been decided previously, in the court of chancery, in a controversy between these same parties. The question, involved in both of these proceedings is whether an assignment of a certain mortgage was made, in the form in which it exists,, by the appellant and her husband, or had been shaped into its-present form by a forgery. In the proceeding in equity, the appellant could not be a witness, in consequence of one of the adverse litigants being a party to the suit in a representative capacity, her contest before that tribunal being supported by the testimony of her husband, aud, as was insisted, by certain circumstances which were exhibited in the evidence. On the issue and proofs thus made, a decree passed against her, and the assignment was validated. The suit at law was then instituted by the appellant in the form of trover, for the mortgage so assigned, and which suit was founded on the ground that the assignment thus established by the decree was invalid, in consequence of the alteration before mentioned. The bill embraced in the decree appealed from was exhibited to restrain this suit. In reply to this bill, the appellant, by way of plea, in substance .vented, by the rules of law, from being a witness in her own favor, and that she is not thus disqualified in the action at law, her contention being that, as the same issue is triable on different, rules of evidence, the doctrine of estoppel resting on the ground of res adjudícala is not applicable. I equitable suit, she was pre-

*540 But this position is unsupported, so far as I have perceived, by either dictum or precedent, and is inconsistent with legal rules resting on the solid basis of public policy and good sense. The proposition for which the appellant contends is this, that a party, as the actor in the suit, may voluntarily submit his contest for decision to a tribunal in a state of the evidence which is exclusive of his own oath, and, such decision being adverse, may retry the same issue, on the ground that he is desirous of introducing his own testimony. If this be so, then, in this class of cases, such actors have it in their power, in every instance, to vex their adversaries by two trials, instead of, as in common cases, being stinted to one. - It will be observed that, in this instance, the appellant had it in her power to choose, in the first instance, the legal forum in which her action is now pending, so that her own oath would have availed; but she selected the equitable forum, and, having failed, now claims the right of having her case heard in its turn by the former. This claim is plainly opposed to the doctrine that imparts to the res judicata its state of .being conclusive. That doctrine grows out of the inconvenience and injustice of the repetition of litigations between the same parties on the same issues.

“After a recovery by process of law,” says Lord Kenyon (Marriott v. Hampton, 7 T. R. 269)’, “ there must be an end of litigation; if it were otherwise, there would be no security for any person.”

And, indeed, so essential is the principle that it does not .seem peculiar to any particular system of laws; it existed in the Roman law, and probably can be found, in some form, in that of every civilized people. The rule is not to be disputed, nor can it be safely infringed.

In his argument before the court, the counsel of the appellant rested his contention on the circumstance that the decree in question was founded on a lesser amount of evidence than the judgment, if it should be obtained in the court of law, would be; but this reasoning indicates the misapprehension of a legal ¡rule. The legal rule referred to is that which declares that when the law requires a certain measure of evidence to warrant a *541 judgment in a certain class of cases, a judgment founded on a lesser measure cannot be conclusive on the trial of any ease of such class. The decision in Riker v. Hooper, 35 Vt. 457 , cited in the argument, is an illustration in point. The facts were that Riker had impounded Hooper’s horse; Hooper sued in trover,, and the issue was as to the legality of the proceedings to impound. Such proceedings were found to be legal, and judgment was given for Riker. Subsequently, Riker sued Hooper on a penal statute to recover a certain sum per day for the time he had impounded the horse, in which action, to prove that the proceedings to impound were legal, he offered the former judgment in evidence. But such evidence was held to be inadmissible, as-it was a judgment in a civil suit which could have -been based-on a mere preponderance of evidence, while the penal action required evidence of greater weight, to wit, proof beyond a reasonable doubt. The ratio decidendi was this: that when the law demands a fixed standard of evidence, a smaller degree of evidence, although embodied in a judgment, will not avail. But such a principle is entirely aside from the present case, for the law does not establish one foundation of evidence in these chancery proceedings, and another for those at law. To make the case now pending analogous to the reported decision, the decree should have been rendered in evidence which, according to legal rules, would not be sufficient to produce a judgment in the suit at law; while, to the contrary of this, the-decree and the judgment may rest on the same evidential basis.

So the inapplicability of the legal theory of the case of Norton v. Woods, 5 Paige 249 , is apparent upon even a slight consideration. It was a bill to set aside a judgment at law which had been obtained because the defendant in that forum had not been permitted, by force of legal rules, to examine one of the plaintiffs as a witness. Here we find nothing but the ordinary principle that when a person is sued in a court of law having a defence which it is not in his power to present, accorded the right to seek relief in equity. But, even in^such an instance, he must appeal to-chancery at the first opportunity, for the chancellor in the case cited truly says, alluding to the proceedings at law, “ it will be *542 too late, after lie lias suffered judgment there, to apply to this court for relief.” In the present case, the appellaut not only suffered the decree in chancery to pass against her, but was the ■complainant in the cause, and put herself upon the judgment of the court. Neither this authority nor that of Jordan v. Loftin, 13 Ala. 547 , which is in a similar vein, lends the least countenance to the contention raised in favor of the appellant.

Nor do I perceive the pertinency of the decisions cited from the court for divorce. The first of these was Stoate v. Stoate, 2 Sw. & Tr. 223, which merely maintained that when a judgment has been obtained on evidence that would not be admitted on the trial of the same issue in another form, the former judgment is inadmissible on the second trial, the ground being that it would be indirectly making use of evidence which was directly inadmissible in the latter trial. The other case, of Sopwith v. Sopwith, 2 Sw. & Tr. 160, is the application of the same principle under variant circumstances. It is not apparent how it can be reasonably contended that such adjudications can apply ■to a case where the evidence in the first suit is entirely admissible in the second suit on the identical issue.

With respect to the decisions to which the attention of the ■court has been called relative to the doctrine that a party is not ■concluded by the election of a forum in which to bring his suit, it is sufficient to say, that the existence of such doctrine is not ■denied, and thatwt is not the fact that the appellant in the first instance sought relief in the court of chancery that debars her from her action at law, but the circumstance having that preventive •consequence is that, with knowledge that she could add to the force of her case her own testimony in a court of law, she ■elected to take the judgment of the chancellor on the issue, supported by evidence that did not prove to be sufficiently convincing. » The vice-chancellor has stated, with great clearness, the legal rule applicable to this case, and the decree should be affirmed, with costs.

Decree unanimously affirmed.