Jenks v. Lurie

THE COURT.

This is a motion to dismiss the appeal upon the grounds that the controversy involved therein has

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been determined in a proceeding over which this court has no jurisdiction; that such determination has become final so that this court cannot grant effectual relief upon this appeal, and that, therefore, this controversy is moot and presents no genuine issue to this court.

This action was brought by plaintiff as executrix of said estate to rescind and set aside upon the grounds of fraud and mistake a sale and conveyance theretofore made by her of a contingent reversionary interest in certain real property arising out of building restrictions contained in a previous conveyance of said property. The answer sets up as an affirmative defense that the sale and conveyance sought to be rescinded was made by plaintiff as executrix; that the sale was duly reported to and confirmed by the court in the probate proceedings; that no appeal was taken from the order of confirmation; that the time for appeal therefrom has elapsed and the same has become final, and that the matters involved herein are therefore

res adjudicata.

The facts so pleaded are the facts which are relied upon in support of this motion to dismiss the appeal. It thus appears that the grounds of this motion are not in reality that the appeal has become moot, or even that the controversy herein is moot. The real ground of the motion is the claim that respondents’ defense of

res

adjudicata, or estoppel by judgment, was a valid and complete defense to the action; that it ought to have been sustained by the trial court; that the judgment in favor of the defendants, therefore, was correct, and that the appeal therefrom is without merit. But this is a question, going to the merits of the action which was litigated in the trial court herein and which is involved and to be determined upon this appeal. This court has sometimes entertained a motion to affirm the judgment on the ground that the appeal is without merit, in that the record on appeal discloses nothing which would justify a reversal of the judgment. But this is done ordinarily in eases where the lack of merit in the appeal is plainly apparent from a mere inspection of the record (as, for example, where the appeal is upon the ground of insufficiency of the evidence, or errors in ruling thereon, and there is no duly authenticated bill of exceptions or reporter’s transcript in the record upon appeal). In order to entertain