193 U.S.

Argument for Plaintiff in Error.

OKLAHOMA CITY v. MCMASTER.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF

OKLAHOMA.

No. 137. Argued January 18, 19, 1905.-Decided February 20, 1905.

The review by this court of final judgments in civil cases of the Supreme

Court of the Territory of Oklahoma is not controlled by the act of 1874 in regard to territorial courts but by $ 9 of the act of May 2, 1890, 26 Stat. 81, 85, providing the territorial government for Oklahoma, and in an action at law where a jury has been waived the review is by writ of error

as in the case of a similar judgment of a Circuit Court, and not by appeal. Where no formal judgment has been entered the plea of res judicata has

no foundation; neither the verdict of a jury nor the findings of a court even though in a prior action, upon the precise point involved in a sub

sequent action and between the same parties constitutes a bar. There was no permit for entry of lands in Oklahoma for town sites under

the act of 1889 or until the town site act was passed May 14, 1890, and an agreement among a portion of the people who on April 22, 1889, chose lots upon a projected town site did not and could not vest an absolute title in persons selecting lots or make a plat or map of town final or conclusive; but the selectors took their lots subject to changes and conditions that might obtain-in this case as to location of streetswhen the township patent was issued to, and a map finally approved by, the township trustees under the act of May 14, 1890.

The facts are stated in the opinion.

Mr. Frank Dale, with whom Mr. S. A. Magginnis, Mr. C. Porter Johnson and Mr. A. G. C. Bierer were on the brief, for plaintiff in error:

The so-called findings and judgment of the District Court of Canadian County clearly did not constitute a judgment that could be set up as res judicata. Child v. Morgan, 52 N. W. Rep. 1127; Auld v. Smith, 23 Kansas, 65; Massing v. Ames, 36 Wisconsin, 409; Taylor v. Runyan, 3 Iowa, 474, 480; Whilewell v. Hoover, 3 Michigan, 84; Lincoln v. Cross, 11 Wisconsin, 94; $5, 24 Am. & Eng. Ency. of Law, 2d ed., 717; Masterman v. Masterman, 51 Pac. Rep. 277; Gordon v. Ken

VOL. CXCVI-34

Argument for Defendant in Error.

196 U. S.

nedy, 36 Iowa, 167; Talesky v. State Ins. Co., 70 N. W. Rep. 187. McMaster did not acquire a vested right in the ground in the streets of Oklahoma City. The Beamer Case, 3 Oklahoma, 652, was rightly decided and the cases cited in the opinion of the Supreme Court of the Territory do not sustain the decision.

The power to correct the survey of Oklahoma town site vested exclusively in the political and not the judicial department of the Government. McDaid v. Oklahoma Territory, 150 U. S. 209, 220; Knight v. United States Land Ass'n, 142 U. S. 161; town site act of May 14, 1890, § 1; $$ 441, 443, 2478, Rev. Stat.

The writ of error and appeal were both taken to this court as a matter of precaution; as to which is proper practice and the effect of findings of the court below, see Stringfellow v. Cain, 99 U. S. 610; Cannon v. Pratt, 99 U. S. 619; cases cited by defendant in error; Gray v. Howe, 108 U. S. 12; Salina Stock Co. v. Irrigation Co., 163 U. S. 190; Teckendorf v. Teckendorf, 171 U. S. 686; United States v. Hooe, 1 Cranch, 318; Davis v. Fredericks, 104 U. S. 618; Thompson v. Ferry, 180 U. S. 484; Stone v. United States, 164 U. S. 380; Dickinson v. Bank, 16 Wall. 250; Insurance Co. v. Tweed, 7 Wall. 44; Haus v. Victoria Copper Mining Co., 160 U. S. 303, 313; Gildersleeve v. New Mexico Mining Co., 161 U. S. 573.

Mr. Chester Howe, with whom Mr. Francis J. Kearful was on the brief, for defendant in error:

There being but one cause it cannot be in this court both by writ of error and by appeal. Either one proceeding or the other will have to be dismissed. Hurst v. Hollingsworth, 94 U. S. 111;S.C., 100 U. S. 100; Plymouth Mining Co. v. Amador Canal Co., 118 U. S. 264; Files v. Brown, 124 Fed. Rep. 133; Lockman v. Long, 132 Fed. Rep. 1. The writ of error should be dismissed. Stringfellow v. Cain, 99 U. S. 610; Hecht v. Boughton, 105 U. S. 235; Story v. Black, 119 U. S. 235; Idaho Land Co. v. Bradbury, 132 \'. S. 509, 514. The judgment

should be affirmed as the testimony cannot be considered on an appeal but the consideration of this court is confined to the statement of facts and rulings certified by the court below. Hecht v. Boughton, 105 U. S. 235; Marshall v. Burtis, 172 U. S. 630. The judgment against the town site trustees was properly admitted and the matter was res judicata. It is permissible to assume from the general findings that defendant in error was entitled to the lot and the deed was arbitrarily withheld. Fayerweather v. Ritch, 195 U. S. 276, 307.

MR. JUSTICE PECKHAM delivered the opinion of the court.

On the twenty-second day of September, 1899, this action of ejectment was commenced by defendant in error in the District Court of the Third Judicial District of Oklahoma Territory, in Oklahoma County. It was brought to recover lands situated in a public street in the city of Oklahoma City. Judgment was entered for the defendant in error for the recovery of the land, and that judgment was affirmed by the Supreme Court of the Territory, and the plaintiff in error has brought the case here, both by writ of error and appeal, taking both courses as a precaution, in order to bring the case before

It was tried by the court, a jury having been waived by the parties, and the defendant in error contends that where a case is thus tried in a territorial court, an appeal to this court is the only proper proceeding to obtain a review. Act of Congress, 1874, 18 Stat. 27, 28. The contention of defendant is not correct in this case. The manner of reviewing judgments, in civil cases, of the Supreme Court of the Territory of Oklahoma is specially provided for by the ninth section of the act of May 2, 1890, 26 Stat. 81, 85, providing a territorial government for Oklahoma, and is not governed by the act of Congress of 1874. Comstock v. Eagleton, 196 U. S. 99. The ninth section of the act of 1890 provides that writs of error and appeal from the final decision of the Supreme Court of the Territory will be allowed and may be taken to the Supreme

Court of the United States "in the same manner and under the same regulations as from the Circuit Courts of the United States," and it was held in the above case that final judgment in an action at law in the Circuit Court of the United States, can only be reviewed by writ of error. The assumption that because this case was tried before the court, a jury having been waived by consent, that therefore it ought to go up by appeal, is a mistaken one. In Deland v. Platte County, 155 U. S. 221, the case was an action at law where a jury had been waived and trial had before the court. Nevertheless, it was held that, as it was an action at law and the case came from a Circuit Court of the United States, it could only be reviewed by this court on writ of error. This case must, therefore, be reviewed by writ of error because it is an action at law, although tried by the court upon a waiver of a jury. The record shows a sufficient bill of exceptions, however, and the case is to be reviewed upon the record as thus presented.

Upon the trial, for the purpose of proving the issue upon his part, by means of evidence of a former adjudication, the plaintiff introduced in evidence what he contended was a judgment in his favor for the recovery of the same land in an action in which he was plaintiff and Edgar N. Sweet et al., town site trustees, defendants, and which was entered in the District Court of the Second Judicial District, county of Canadian, Territory of Oklahoma, on or before May 11, 1892, and recorded on the fourteenth day of May, 1892, in the county of Oklahoma. The plaintiff argued that the defendant (plaintiff in error) in the case at bar was bound as a privy by the adjudication in the former action. The paper was received in evidence by the court, and it is set forth at length in the record. It is evidently nothing but a finding of facts by the judge trying the cause. There was also a paper offered and received in evidence, signed by the trial judge in the same case, and dated the thirteenth day of October, 1893. This was an order made in the case by him at Kingfisher, in Kingfisher County, and was entered in that county on the thirteenth day of October, 1893,

the day of its date. The order directs the defendant to make, execute and deliver to Frank McMaster, the plaintiff, a trustee's deed, “as decreed by this court on the fourteenth day of November, 1892, of the following described premises and real estate.” It is attempted to piece these two documents together, the finding of facts filed in Canadian County and thereafter recorded in the county of Oklahoma, and the order made in Kingfisher County and filed therein October 13, 1893, and to regard the whole as a judgment. It is plain that there has been no formal judgment entered in the case, and that these two separate documents, filed in different clerks' offices, cannot be pieced together and made a formal and complete judgment. Without a judgment the plea of res judicata has no foundation; and neither the verdict of a jury nor the findings of a court, even though in a prior action, upon the precise point involved in a subsequent action and between the same parties, constitute a bar. In other words, the thing adjudged must be by a judgment. A verdict, or finding of the court alone, is not sufficient. The reason stated is, that the judgment is the bar and not the preliminary determination of the court or jury. It may be that the verdict was set aside, or the finding of facts amended, reconsidered, or themselves set aside or a new trial granted. The judgment alone is the foundation for the bar. Springer v. Bien, 128 N. Y. 99.

Without resort to this (asserted) judgment in the action against the town site trustees, it is not urged that the defendant in error made out his case upon the trial. There was no judgment, and the "finding of facts" should not have been held to be such. For the error in the admission of the so-called judgment the case must be reversed.

We do not decide, even if there had been a technical and formal judgment entered, that such a judgment would be conclusive in favor of the plaintiff upon the trial of this action against the city of Oklahoma City. Whether the plaintiff in error would be regarded as a privy to such judgment, and, therefore, bound by it, it is not now necessary to decide.