is the stronger in right. Hence the fact that the plaintiff is an Indian woman, and her son an illegitimate son, furnishes no reason why this court may cast aside their evidence. Either as matter of law or matter of fact it cannot be said that an Indian woman or an illegitimate son is not to be believed under oath. sociated freely with plaintiff, and visited plaintiff as the wife of defendant. We also have the testimony of one Westfall, to the effect that plaintiff and defendant were known in that neighborhood and adjoining counties as husband and wife; that the plaintiff was everywhere called "Mrs. Hite" and "Lucy Hite, wife of John R. Hite;" and that plaintiff and defendant held themselves out to the world, and were always treated, as husband and wife. From this condensed statement of the showing made by the plaintiff I feel entirely satisfied in saying that she is entitled to alimony and suit money, in order that she may be able to meet the defendant squarely at the trial of the case upon the issue of marriage or no marriage. Let us pause a moment to look at the evidence. A great portion of it is without sub stantial conflict, as follows: Hite lived with this woman for twenty-five years. During that time he furnished her with all the necessaries of life. He gave her a house in which to live. He was the father of her child. His sister visited her at this house, and slept with her. His nephews visited her at this house, and addressed her as "Aunt Lucy." He sent her illegitimate son to school, and paid the expenses of his schooling. He treated this son as his own son, and he was always considered and reputed in the neighborhood to be the stepson of defendant, Hite. In addition to this uncontradicted evidence, we have the testimony of Thomas Gibbs, the illegitimate son, to the effect that the plaintiff is known far and near throughout the southern part of California as the wife of John R. Hite; that defendant has introduced plaintiff as his wife, and held her out to the world as his wife continuously: that defendant's relatives and friends have as-firmed. I fail to comprehend how it may be said from the record that the trial judge decided this case upon a wrong theory. There is not a word in the record to indicate it. Upon the contrary, the fact that the hearing was had after notice to the other side, and that upon such hearing defendant introduced a great mass of evidence to support his claim of no marriage, indicates convincingly to my mind that the trial judge heard and decided the case upon the right theory, and that his conclusion was based upon all the evidence placed before him by both parties to the lit igation. I think the order should be af KENTUCKY COURT OF APPEALS. Martin BRIDGES et al., Appts., v. William MCALLISTER. 1. Acts done pursuant to a subsisting judgment which is afterwards reversed cannot be made the basis of an action for damages for tort. 2. A judgment against an employee in favor of a third person whose rights are affected by what is done in the course of the employment is binding on the employ A of the Circuit Court for Daviess Coun PPEAL by defendants from a judgment ty in favor of plaintiff in an action to recover damages for the closing up of a ditch and throwing water back on plaintiff's land. Reversed. The facts are stated in the opinion. Messrs. George W. Jolly and Horace Jolly, for appellants: A judgment, though subsequently reversed for error, furnishes full protection for all acts done under it in enforcing it, prior to its reversal. er, when he knows of the suit and testifies Judgm. §§ 170, 355; Simpson v. Hornbeck, Freeman, Judgm. §§ 1046, 482; Black, in it as a witness. (June 9, 1899.) NOTE.-Liability for tort in doing acts authorized by subsisting judgment which is after wards reversed. This note does not cover the subject of the restitution of property, or its equivalent in case it cannot be restored in specie, nor the question whether in the latter event an action in tort will lie to recover its value; but treats only of liability beyond that arising from the duty to restore property or its equivalent. 3 Lans. 53: Clark v. Pinney, 6 Cow. 297; Allen v. Huntington, 2 Aik. (Vt.) 249, 16 bono, to have restored what has been lost, and that it does not relate back so as to render wrongful acts done under the judgment which were justified at the time. Mark v. Hyatt, 135 N. Y. 306, 18 L. R. A. 275, holds that an action of trespass will not lie to recover damages caused by a permanent prohibitory injunction erroneously granted and subsequently reversed, but which was within the jurisdiction of the court, unless the prose cution was malicious. The court says, even if the injunction were void the damages resulting from obedience to it could not be recovered by defendant in the injunction action, since they The prevailing doctrine is that the reversal resulted from his voluntary and needless act. of a judgment which is merely erroneous as dis- The trespass results, not from the mere granttinguished from one that is irregular, void, or ing of the void judgment or process, but from i voidable merely creates a right, ex æquo et the performance of some affirmative act under There are but few cases in point, and they are in substantial harmony with the principal case. Am. Dec. 702; Kaye v. Kean, 18 B. Mon. | 319, 48 Am. Rep. 161; Bridgers v. Dill, 97 847; Clark v. Rodes, 12 Bush, 16. N. C. 222. Judgments are conclusive on not only the parties to the record, but also on all who are in privity, and on the master where the servant is sued, and on the principal where the agent is sued, if the master or principal had notice of the pendency of the suit. Emery v. Fowler, 39 Me. 326, 63 Am. Dec. 627; Hill v. Bain, 15 R. I. 75; Herman, Estoppel & Res Adjudicata, §§ 150, 152; Freeman, Judgni. §§ 174, 175; Schmidt v. Louisville, C. & L. R. Co. 99 Ky. 143; Castle v. Noyes, 14 N. Y. 329; Alexander v. Taylor, 4 Denio, 302; Jackson v. Griswold, 4 Hi!!, 522; Robbins v. Chicago City, 4 Wall. 672, 18 L. ed. 430; Blasdale v. Babcock, 1 Johns. 519; LeNeve v. LeNeve, 3 Atk. 646; 2 White & T. Lead. Cas. Eq. 160, note. A plea that the matters involved in the suit had been, for a valuable consideration, before the suit was commenced, compromised and settled between the parties to the suit, is a good defense to the action. There was no evidence to support the verdict, and peremptory instruction should have been given, because the plaintiff's own evidence proved he was not in possession of the crops; that the crops belonged to his tenants, none of whom were parties to the suit. Chicago & W. M. R. Co. v. Linard, 94 Ind. it by the party from whom the damages are sought. The question as to the right to recover damages caused by an erroneous or void judgment is discussed in a note to the latter case in 18 L. R. A. 275. Thompson v. Reasoner, 122 Ind. 454, 7 L. R. A. 495, holds that an action in tort will not lie to recover damages for injury to land from the casting of surface water thereon from a drain constructed in good faith pursuant to a judgment subsequently reversed for error. Simpson v. Hornbeck, 3 Lans. 53, holds that an arrest under a body execution upon a judgment subsequently reversed for error will not support an action for false imprisonment. The opinion says that an action to recover back money collected under a judgment afterwards reversed is not founded upon any supposed wrong in collecting it, but upon the ground that in equity and good conscience it ought to be paid back. The same rule and distinction are applied by Bryan v. Congdon, 57 U. S. App. 505, 86 Fed. Rep. 221, 29 C. C. A. 670, and Fisher v. Langbein. 62 How. Pr. 238, to an order of arrest reversed on appeal. Chapman v. Dyett, 11 Wend. 31, 25 Am. Dec. 598: Marks v. Townsend, 97 N. Y. 590; Landt v. Hilts, 19 Barb. 283; and Hall v. Munger, 5 Lans. 100,-hold that an arrest under an erroneous order subsequently set aside by the court granting it will not support an action for false imprisonment, distinguishing between erroneous and irregular orders. Day v. Bach, 87 N. Y. 56, holds that an action for conversion will not lie against an attachment creditor for property taken under an attachment vacated on appeal where the property was sold as perishable pending the appeal and the attachment creditor received none of the proceeds. The opinion says that it is well settled that a process that is merely erroneous protects a party for acts done under it while The measure of damages for destruction to growing crops is not the rental value of the land, but the value of the crops at the time of their destruction. Sedgw. Damages, 18th ed. §§ 434, 435, 927; Sabine & E. T. R. Co. v. Smith, 73 Tex. 1; Byrne v. Minneapolis & St. L. R. Co. 38 Minn. 212. Mr. R. G. Hill also for appellants. Messrs. Sweeney, Ellis, & Sweeney and Walker & Slack for appellee. Hobson, J., delivered the opinion of the court: Appellants and appellee own neighboring farms. Between their lands there was a ridge, which prevented the water falling on appellee's land from flowing down naturally over appellants' land. Both farms lie in a very level section, where there is difficulty about drainage. Some years ago the owners of the land above the ridge, and some of those below, united in an undertaking to cut a ditch in a southerly direction, through the ridge, to Panther creek, for the purpose of draining all their land. The ditch was cut through the ridge, but, for want of means to complete it, there stopped. The result of this was that the lands above the ridge were in force, and that he may justify under it after it has been set aside, distinguishing between an erroneous process and one that is irregular or void. The same distinction is made by Lyon V. Yates. 52 Barb. 243, and Kerr v. Mount, 28 N. Y. 666, and cases where the attachment was vacated by the court granting it. The extent of the protection afforded by an erroneous decree is further illustrated by Bailey v. Bailey, 45 Hun, 278, holding that a decree of divorce against a wife, though subsequently reversed for error, estopped her to assert that the husband's cohabitation, pending the appeal, with another woman whom he married after the rendition of the decree and before its reversal, was adulterous. The English cases also distinguish sharply between erroneous and irregular judgments, holding that the former, though subsequently reversed, afford full protection for acts done under them, while the latter do not. Williams v. Smith, 14 C. B. N. S. 596, holds that an action for false imprisonment cannot be based upon an arrest under an erroneous attachment for contempt which was subsequently set aside upon appeal, and there is an implied decision to the same effect in Prentice v. Harrison, 4 Q. B. 852, 12 L. J. Q. B. N. S. 315. 7 Jur. 580. Davis & M. 50, which holds that a replication to a plea justifying an arrest under a ca, sa. on a judgment is bad, where it merely states that the ca. sa. has been set aside, without stating the reasons, upon the ground that it may have been set aside for reasons that might have been ground for error. Barker v. Braham, 3 Wils. 368. 2 W. BI. 866, and Philips v. Biron. 1 Strange, 509 (actions for false imprisonment), while holding that a judgment vacated for irregularity does not justify acts done under it, state that the rule is otherwise where the judgment is reversed for error merely, and Turner v. Felgate, 1 Lev. 95, makes the same distinction. G. H. P. court below refused to allow the amended answer to be filed, holding, in effect, that the judgment was no protection as to acts done under it, though not superseded. There was then another trial, resulting in a verdict for $1,000 in favor of appellee. drained and the lands below were flooded by | was only their agent in the transaction. The water that did not by nature flow upon them. The work upon the ditch was abandoned. It caved in. Trees and other things fell in it, until in many places it was nearly filled up. The owners of the land above the ridge after some years employed William Miller to clean it out, and, he having begun to do so, appellants and others, owning land below the ridge, filed suit against him for the purpose of enjoining him from cleaning out the ditch. On the hearing of this case the circuit court entered a mandatory order requiring the ditch to be filled up so that no water could pass over the ridge that did not flow over it naturally. On appeal from this judgment to this court it was held that the injunction should have prohibited the appellants from cleaning out the ditch, or from reconstructing it in any way so as to increase the flow of water on the land below it, and that it was error to require the ditch to be filled up. See Miller v. Hayden, 91 Ky. 215. On the return of the cause a judgment was entered in that action pursuant to the mandate of this court. This was something over two years after the entry of the original judgment requiring the ditch to be filled up. There had been no supersedeas of that judgment, and, in obedience to it, the ditch had been filled up as therein required. By reason of the filling up of the ditch under the judgment, the water which had passed through it from appellee's land could no longer escape in this way, and was thrown back on it. After the ditch had been opened to the extent indicated by the judgment entered in obedience to the opinion of this court, appellee brought this suit for damages to his land from the closing of the ditch for the two years it had remained stopped up under the judgment. Appellants pleaded, in defense of the action, that the ditch had been stopped up in obedience to the order of the court, and relied upon that judgment as a protection to them from damages sustained by reason of what was done in obedience to it. there being no supersedeas. They did not allege, however, that appellee was party or privy to the case in which the judgment was rendered, and the court sustained a demurrer to this plea. There was then a trial, and verdict for defendants, which, on appeal to this court, was set aside. The opinion of this court pointing out that the judgment pleaded was no bar, because it was not averred that appellee was party or privy to that action. McCalister v. Bridges, 19 Ky. L. Rep. 107. There was no cross-appeal in that case, and from the nature of the case there could be none; so the only question before the court was whether there had been a fair trial before the jury. Nothing more was considered or decided. On the return of the case the defendant tendered an amended answer in which he set out that Miller, while cleaning out the ditch, was acting as the agent and servant of appellee McAllister; that appellee, with others, employed him to dig the ditch, and knew of the suit, testified in it as a witness, and that Miller The main question arising on this appeal is as to the effect of the reversed judgment on acts done under it and in obedience to it before its reversal, when it was not superseded. In Freeman, Judgm. § 482, it is said: "But a subsisting judgment, though afterward reversed, is a suflicient justification for all acts done by plaintiff in enforcing it. prior to the reversal. Thus, if the defendant is taken in execution, the subsequent reversal of the judgment will not render the plaintiff liable to an action for false impris onment; for the act of imprisonment, when directed by the plaintiff, was sanctioned by a then valid judgment." And in § 1046 the same author says: "The case of a judgment. set aside for irregularity differs materially from that of one reversed upon appeal. In the latter case the error for which the judg ment is ultimately avoided is imputed to the court, and the parties are not left without protection for the acts which they have done, based upon the judgment, and upon their confidence in the correctness of the decision of the court." The same principles are laid down in Black, Judgm. §§ 170, 355. In Kaye v. Kean, 18 B. Mon. 847, Kean obtained a mandamus against Kaye, which he refused to obey, and, being imprisoned for disobedience, brought suit against Kean, upon a reversal of the judgment awarding the mandamus, for damages for his imprisonment. His petition was dismissed. The court said: "The judgment of the circuit court was not void, but merely erroneous. So long, therefore, as the judgment remained in force. unsuspended and unreversed, it was the duty of the appellant to have rendered obedienceto it. His contumacy subjected him to be proceeded against for a contempt, and as. therefore, there was sufficient cause for his imprisonment, he cannot maintain an action therefor against the appellee." In Clark v. Rodes, 12 Bush, 16, again this court said: "A judgment is a final and conclusive determination of the rights of the parties to the litigation; and until it shall be reversed, vacated, or modified in some one of the modes provided by law the parties cannot refuse to obey it, nor can they by subsequent litigation, idemnify themselves against its legal consequences." In Fraser v. Page, 82 Ky. 73, an executor who had paid out a fund under a judgment which was not superseded, and afterwards reserved, was held protected by it for acts done in obedience to it while in force. The same ruling was made in Me Kec v. Smith, 5 Ky. L. Rep. 224; Shultz v. Beatty, 6 Ky. L. Rep. 662; Showalter v. Simmons, 5 Ky. L. Rep. 423; Dudley v. Beatty. 5 Ky. L. Rep. 773. These cases proceed upon the principle that what was lawful when done does not become unlawful by reason of subsequent acts. The chancel hold the court in person, and delegated this function to one of his officers, the character of the judgment was the same. Manifestly, there the subject was not responsible for damages for the act of the King. In this country the power vested in the King vests in the body of the people, and the courts sit as their representative. The law, from principle and policy, requires that full confidence should be given to judgments while in force. It tends to prevent the troubles incident to the settlement of disputes by the act of the parties, often bringing about breaches of the peace or bloodshed. It is the duty of every good citizen to obey the mandates of the law, and no one should incur any responsi bility by doing that which it was his duty to do. It is also the duty of every citizen to uphold the authority of the courts, and main in doing this, he obeys a judgment of the court, it is a sound and safe rule that no liability for damages should arise therefrom. The case of Hays v. Griffith is disapproved so far as it may be construed to lay down a was bound by the original judgment while it was in force. In Freeman, Judgm. § 174, the rule is thus stated: "Neither the bene lor, in entering the judgment in the case re ferred to, did not act as the agent of either of the parties. The judgment was the act of the law. Neither party could control the court, and neither was responsible for his actions. The law constituted a tribunal to determine the rights of the parties. That determination, proceeding from a power above them, was in no sense their act. A litigant in this court does not procure the judgment entered in any such sense as to render him responsible for the consequence of the judgment, or its reversal by the United States Supreme Court. We have been referred to no case, and can find none, where an action for damages has been sustained upon the re versal of a judgment for acts done pursuant to it, as for a tort. The fact that there are no precedents for such recovery seems at this day conclusive that it has not been recog-tain respect for their judgments; and when, nized as admissible by either the bench or the bar. When a judgment is reversed, restitution must be made of all that has been received under it, but no further liability should in any case be imposed. The case of Hays v. Griffith, 85 Ky. 375, is not sup-different rule. ported by the weight of authority, and can- It remains to determine whether appellee not, in cur judgment, be maintained on principle, so far as it lays down a greater liability. The quotation from Freeman on Judgments is from a sentence omitted alto-fits of judgments on the one side, nor the gether in the last edition. The opinion is supported only by some cases in Illinois and California, and is contrary to the rule fol. lowed by the United States Supreme Court and all the other state courts, so far as we have seen. It is also in conflict with the well-settled rule that the court, in ordering or confirming a judicial sale, and the commissioner, in making it, do not act as the agent of the plaintiff. Bank of United States v. Bank of Washington, 6 Pet. 9, 8 L. ed. 300; Rorer, Judicial Sales, §§ 1-12; Forman v. Hunt, 3 Dana, 621. Appeals may be taken from judgments, ordinarily, within two years, but sometimes within five or twenty years; and it often produces intolerable hardship to hold a litigant responsible for the consequences of an erroneous judgment under such circumstances. The object in having trust estates, including those of decedents, or those assigned for the payment of debts, settled in equity under the direction of the chancellor, is to protect the parties in the payment of the money, as well as to secure to everyone his rights. A creditor with a small claim, who moved for a distribution of the fund, would, under the In such cases the technical rule referred to, be responsible for the entire rule that a judgment can only be admitted fund upon a reversal of the judgment, al- between the parties to the record or their though he had received only a few dollars of privies expands so as to admit it when the it. Such a rule would destroy all confidence same question has been decided and judg in judgments of courts, and make them the ment rendered between parties responsible prolific parent, in many cases, of ruinous liti- for the acts of others." These conclusions gation. Our system of courts and the prin- are sustained by Emery v. Fowler [39 Me. ciples governing them are derived from the 326] 63 Am. Dec. 627; Hill v. Bain, 15 R. I. common law. But in England the tribunal 75; Robbins v. Chicago, 4 Wall. 672, 18 was called the "curia" or "court," because it L. ed. 430, where many other authorities was held by the King himself originally. are collected. This subject was fully considThe judgments of the courts read as the judgered by this court in the case of Schmidt v. ments of the King, and when he ceased to Louisville, C. & L. R. Co. 99 Ky. 143, and un obligations on the other, are limited exclu· der the principles settled in that opinion and any facts showing that appellee was party in the previous case of Warfield v. Davis, 14 privy to the judgment relied on in bar, or B. Mon. 43, appellee was clearly bound by bound thereby in any way. These facts the judgment against his agent, Miller, in having been pleaded on the return of the case, the original action. That action was clearly the question is now before the court for the brought to settle the rights of the parties. first time. Then there had been a verdict for It has since been recognized by them as set- the defendant. There was no cross appeal, tling their rights. Appellee brought no suit and could be none, and the only question for damages for the filling up of the ditch was whether there had been a fair trial ununtil that judgment was reversed, and it der the issues presented. The rule is well may be safely assumed that he would not settled that a question not in issue, though have sued at all if that judgment had been passed upon in the opinion on a prior apaffirmed. The action has proceeded upon the peal, is not res judicata on a subsequent apassumption of both parties that the judg- peal, where the issue was properly made by ment in that case finally settled their rights, pleadings filed after the first appeal. See and that appellant could not relitigate here note to Hastings v. Foxworthy (Neb.) 34 L. the right to stop up the ditch entirely, which R. A. 344, and cases cited. Thus, in O'Brian was determined against him there. But the v. Com. 6 Bush, 563, it was held that a disestoppel of a judgment is always mutual. If charge of a juror after the jury was sworn. it binds one of the parties, so as to prevent without the defendant's consent, did not him from showing the truth, it also estops operate to acquit him. But when this opinthe other. If the judgment referred to did ion was rendered there had been no plea of not bind appellee until reversed, then it con- former jeopardy. On the return of the cause stituted no estoppel upon appellant in this to the lower court the defendant put in this action, and he might have shown all the plea, and, having been again convicted on a facts, and had the jury pass on the question second appeal, the former opinion was held of fact determined there. Appellee has not not to conclude the question, and the defendproceeded with his case upon this theory, but ant was discharged. 9 Bush, 333, 15 Am. both parties have recognized the judgment Rep. 715. This rule has the indorsement of in the equity case as settling finally their the United States Supreme Court, and seems rights in the ditch. This was, we think, a to us sound, and necessary to the proper adcorrect view of the law. The judgment final-ministration of justice. Barney v. Winona ly rendered in that action is conclusive on & St. P. R. Co. 117 U. S. 228, 29 L. ed. 858. both parties as to the right to maintain the ditch and the chancellor's judgment, until reversed, was equally conclusive, and, not having been superseded, neither can maintain an action against the other for acts done in obedience to it while it was in force. This question was not before the court on the last appeal of the case, and what was said then must be taken in reference to what was before the court. There was no plea then of The judgment complained of is therefore reversed, and cause remanded, with directions to the court below to grant appellants a new trial, to allow the amended answer to be filed, and for further proceedings not inconsistent with this opinion. Petition for rehearing overruled October 7, 1899. ALABAMA SUPREME COURT. J. D. HARDY et al., Appts., บ. J. H. GUNN. (........Ala.........) An execution upon a judgment for use cover possession of certain real estate which plaintiff had bought at an execution sale under a judgment against defendant. Re versed. The facts are stated in the opinion. Messrs. Knox, Bowie, & Pelham, Longshore & Beavers, and W. S. Cary for appellants. Messrs. Browne & Leeper, for appellee: and occupation of real estate with held under an apparent legal title from one holding a superior equitable title cannot be levied upon other land which defendant had conveyed to his wife as a statutory home-time of said conveyance by Hardy to his stead by a deed recorded prior to the rendition of the judgment. (November 5, 1898.) A NOTE. On the question. What expectant and contingent interests in real property are subject to attachment or levy on execution?-see note to Young v. Young (Va.) 23 L. R. A. 642. wife, and said conveyance being a voluntary one, it is void as to Gunn's debt, provided the property therein conveyed was liable to the satisfaction of said debt. This latter question depends solely upon whether or not Gunn's debt was a contract debt or a noncontract debt. Damages in an ejectment suit at law are not the subject of exemption. Penton v. Diamond, 92 Ala. 610. |