
    No. 586
    WHITLOCK, exc. v. MATSON
    No. 19055.
    Supreme Court.
    On motion to certify. Dock.
    March 30, 1925,
    3 Abs. 214.
    1027. RES ADJUDICATA—1. Does former judgment of “not guilty” of concealing assets of testator, when plead in bar in action for recovery on note in favor said testator; preclude judgment in favor of executor of estate, on the note, by the rule of res adjudicata?
    2. Does rule apply here?
    3. May evidence pertinent to the issue - of res adjudicata be heard and passed upon by trial court without intervention of jury?
    Attorneys—Dudley C. Outcalt and Edward H. Jones, for Whitlock; both of Cincinnati.
   The case-was begun in the Hamilton Probate Court by a filing of an interpleader by Joel C. Clore who admitted owing a note made payable to A. B. Whitlock, deceased, of whose estate Robert Whitlock is Executor. . It was set up in the interpleader that both Robert Whitlock and Pansy Matson claimed the ownership -of the money due, and. thereupon both Whitlock and Matson filed pleadings.

Whitlock alleged that the note had been made payable to the deceased testator, that it had never been endorsed nor title to the fund assigned or otherwise disposed of, and that as executor he was .entitled to the money- due. Matson alleged that there had been a.gift of the note to her by the testator and therefore asked for judgment against Clore, the maker of the note. She set up that in a former suit against .her by Whitlock, on a complaint that she ha'd' concealed specific articles of personal property and the note referred to. a judgment had been rendered of not guilty.

Th.e . former proceeding was begun in the Probate Court and from there removed tó the Common Pleas following the demand of Mat-son for a: jury trial. The trial judge, instructed a verdict of “not guilty” later set aside and the’ case dismissed. More than 'a year later, following a reversal of the dismissal by the Court.-of Appeals, the same common pleas judge took up the case without the same having been set for trial; and without calling a ju?y. or hearing evidence entered a judgment of not guilty. The trial regarding the note in the instant case was then heard in the Hamilton Common Pleas without a jury and judgment was rendered in favor of Matson. The judgment Was affirmed by the Court of Appeals.

Whitlock brings the case to the Supreme court and declares that the Common Pleas, the matter was res adjudicata.

Whitlock contends that the Common Pleas had no-jurisdiction to enter said judgment in said specific, proceedings, and :that the judgment of “not guilty” in the former case was ab initio void, and no judgment at all.

It is claimed that on proceedings in error of the former case the Court of Appeals starts with the premise that title to the notes could have been tried or determined in an action for concealment of assets; then draws the. .conclusion that a judgment, of “not guilty” of concealment is decisive of right to recover the debt evidenced by the said promissory note, and the judgment. of not guilty operates to bar the executdf of payee’s estate from maintaining a suit to recover the money due from the., debtor.

It is claimed that the trial court erred in the' instant case by refusing to furnish a jury as requested.- by Whitlock; said error- being based upon reliance upon 11466 GC., requiring' a written demand to be filed to’obtain’a jury trial. This statute Whitlock claims was held to be invalid and unconstitutional in Insurance Co. v. Michael, 14 CC. (NS) 95, as was -a previous similar statute in Silverman v. Hay 59 OS. 582.  