UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

PIKEVILLE DIVISION

 

 

IN RE:

RED STAR COAL COMPANY

DEBTOR CASE NO. 92-10146

CHAPTER 11

 

 

LESLIE RESOURCES, INC., et al. PLAINTIFFS

 

VS. ADV. NO. 92-7021

 

RED STAR COAL COMPANY, et al. DEFENDANTS

 

FINDINGS OF FACT and CONCLUSIONS OF LAW

 

This matter came before the Court for trial on October 19, 1993. The Court having considered the testimony offered at trial, the joint stipulation of the parties, the briefs of the parties, and the documentary and other pertinent evidence of record in this case, and being otherwise fully advised, now, in accordance with Rule 52 of the Federal Rules of Civil Procedure, made applicable herein by Rule 7052 of the Federal Rules of Bankruptcy Procedure, makes the following Findings of Fact and Conclusions of Law:

Findings of Fact

This matter was initiated by the filing of the plaintiff's interpleader Complaint on October 28, 1992. Therein the plaintiff asked the Court to determine the proper recipient of royalties from property claimed by both Red Star Coal Company ("Red Star") and the Polly B. Smith heirs ("Smith heirs"). The Smith heirs filed their Answer to Interpleader Complaint and Cross-Claim Against Red Star on February 11, 1993. Red Star filed its Answer, Reply to Cross-Claim, and Cross-Claim Against Smith Heirs on March 16, 1993. On April 5, 1993, the Ben Martin heirs filed a Motion to Intervene, and on the same date the Smith heirs filed their Reply to Red Star's Cross-Claim.

This Court entered an order allowing the Ben Martin heirs to intervene on April 19, 1993, and amended the order on April 21, 1993, to limit the Ben Martin heirs' participation to the determination of the validity of a 1943 Knott Circuit Court judgment at issue in this matter. On May 7, 1993, the Smith heirs filed a Motion to Dismiss, Motion to Strike and Motion for More Definite Statement. Red Star filed its Answer to Intervening Complaint on May 20, 1993. The Ben Martin heirs filed an Amended Intervening Complaint on May 21, 1993.

Red Star filed a First Amended Cross-Claim Against Smith Heirs on May 25, 1993, and the Smith heirs filed their Answer thereto on June 3, 1993. On June 8, 1993, the Ben Martin heirs filed their Response to the Smith heirs' Motion to Dismiss, to Strike, and for a More Definite Statement. This Court entered an Order Granting Smith Heirs Motion to Strike on June 18, 1993. The Smith heirs filed their Answer to Ben Martin Heirs Amended Intervening Complaint on June 24, 1993.

In preparation for trial, the plaintiff, Leslie Resources, Inc., the defendants, Red Star and the Smith heirs, and the intervening plaintiffs, the Ben Martin heirs, entered into a Joint Stipulation which sets out the following undisputed facts:

1. The plaintiff, Leslie Resources, Inc. ("Leslie Re-

sources"), is a Kentucky corporation doing business at 120

Campbell Drive, Hazard, Perry County, Kentucky 41701, and Greg

Wells as its President.

2. The defendant, Red Star Coal Company ("Red Star"), is a

Kentucky corporation doing business at P. 0. Box 450, Dwarf,

Kentucky 41739, and Leroy B. Lackey, Jr. is its President.

3. The defendants, Leslie H. Smith, Bill S. Smith, Karah

E. Smith, Donatina Smith, Sean Clay Smith, Karen S. Hope, Judson

W. Smith, R. Maxine Smith, Russell R. Voorhees, Patricia Voor-

hees, Elaine Rabidoux, Robert Rabidoux, Patsy Lenore Whyte,

Individually and as Trustee for the Estate of Rachel B. Smith,

Andrew Whyte, Ruth Raleigh, John Raleigh, Mae Logan, Individual-

ly and as Trustee for the Estate of Carl B. Smith, Patty J.

Browning, Claude Browning, John Dennis B'Smith, Elaine M. B-

'Smith, Dorothy Fothergill, Albert Fothergill, Thelma Smith, Reka

Lanier, George H. Lanier, Delza B. Smith, III, Ada Fos, Donna F.

Gensheimer, Sarah Augustus and James Augustus, constitute all of the heirs and devisees of children of Polly B. Smith who acquired her property under her will and, where applicable, their respec-

tive spouses, all of whom are hereinafter referred to collective-

ly as the "Polly B. Smith Heirs."

4. The intervening plaintiffs, Ida Combs Martin, Antoin-

ette Neumann and Eric Neumann, her husband, Majesta Hudson and

Dale Hudson, her husband, Goldie Martin, a widow, individually

and as Executor of the Estate of Carvel Martin, her husband,

deceased; Adelaide Martin, a widow, Celaun (Sonny) Martin and

Velma Glee Martin, his wife, John Robert Williams, Eric Williams

and Nancy Williams, his wife, Slechia Martin Craft, a widow and

Kohlman Martin and Gladys Martin, his wife, constitute all of the

heirs, devisees and descendants of Ben Martin, and where applicable, their respective spouses, all of whom are hereinafter referred to collectively as the "Ben Martin Heirs."

5. By deed from Robert H. Barnett and Betty L. Barnett,

his wife, dated April 5, 1988 and recorded in Deed Book 143, Page

484, Knott County, Red Star was conveyed a tract of land contain-

ing 45.6 acres, more or less, located at the head of Walkers

Branch of Troublesome Creek in Knott County, Kentucky, the

property described in said deed being hereinafter referred to as

the "Gladys Arthur Tract."

6. Red Star claims to own a 100% interest in the surface

and coal in, on and under the Gladys Arthur Tract.

7. By lease agreement dated as of August 3, 1992 (herein-

after "Red Star Lease"), Red Star leased unto Leslie Resources

certain coal and coal mining rights in and to a portion of the

Gladys Arthur Tract.

8. The Polly B. Smith Heirs claim to own a 100% interest

in both the surface and mineral of a tract on Walkers Branch

commonly known as and hereinafter referred to as the "Polly B.

Smith Tract," being all of the same property described in that

certain judgment of the Knott Circuit Court (hereinafter "1943

Judgment") rendered in the case of Polly B. Smith, et al v. Ben

Martin, et al, dated November 20, 1943, and recorded in Civil

Order Book 16, Page 264, records of the Knott Circuit Clerk.

9. By coal lease dated April 19, 1975, as amended by an

agreement between Bill Stanley Smith, et al and R. M. Mining

Company, Inc. dated August 26, 1975, and as further amended by an

agreement between Leslie H. Smith, et al and R. M. Mining Com-

pany, Inc. dated July 14, 1977, which three documents are herein-

after referred to collectively as the "Polly B. Smith Heirs

Lease," the Polly B. Smith Heirs leased unto R. M. Mining

Company, Inc. certain coal and coal mining rights in and to the

entire Polly B. Smith Tract. A memorandum of the April 19, 1975 lease agreement is recorded in Lease Book 38, Page 571, Knott County.

10. By Assignment and Option dated November 9, 1990, and

Addendum to Assignment and Option dated February 12, 1991 between

R. M. Mining Company, Inc. and others, as Assignors, and Leslie

Resources, Inc., as Assignee, R. M. Mining Company, Inc. assigned and/or sublet unto Leslie Resources certain coal and coal mining rights in and to the Polly B. Smith Tract.

11. The description of the Gladys Arthur Tract as set forth in the aforementioned deed from Robert H. Barnett and Betty L. Barnett to Red Star and the description of the Polly B. Smith Tract as set forth in the 1943 Judgment may overlap one another, the area of such possible overlap being hereinafter referred to as the "Disputed Area," which is the same or approximately the same area shown as "Disputed Area 1" on the "Baker Map" attached to the complaint as Exhibit A.

12. There is a dispute between Red Star and the Polly B.

Smith Heirs as to which of them has superior title to the Dis-

puted Area and thus, since each of the disputing claimants is the lessor of Leslie Resources, there is a dispute as to which of them is entitled to production royalties, wheelage payments, and minimum royalty payments called for in the respective leases.

13. The Red Star Lease calls for production royalties at

the rate of $2.75 for each ton of coal mined from the Gladys

Arthur Tract or 10% of the gross selling price of said coal,

whichever is greater, wheelage at the rate of $0.10 for each ton

of coal mined from other property and transported across the

Gladys Arthur Tract, and recoupable minimum royalties at the rate

of $2,000 per month. The Polly B. Smith Heirs lease calls for

production royalties at the rate of $2.00 for each ton of coal

mined from the Polly B. Smith Heirs' Tract or 10% of the "market

price" of said coal, whichever is greater, wheelage at the rate

of $0.15 for each ton of coal mined from outside the Polly B.

Smith Heirs' Tract and transported across said tract, and non-

recoupable minimum royalties at the rate of $2,000 per month.

14. On November 25, 1992 this Court entered an agreed order

allowing Leslie Resources to deposit production royalties,

minimum royalties, and wheelage payments, all at the rates

specified in the Red Star Lease, with Peoples Bank & Trust

Company of Hazard, Kentucky to be deposited by said bank in an

interest bearing account and held by said bank as escrow agent.

Leslie Resources thereafter caused a passbook savings account to

be opened at Peoples Bank & Trust Company of Hazard, Kentucky to

act as a depository for all such payments, which is Account No.

17250116. The sums deposited into said bank account by Leslie

Resources since the entry of the Court's order, and the interest

credited thereon, all through June 28, 1993 are as follows:

Production Royalties (less recouped

minimums) $146,012.87

Minimum Royalties $ 6,000.00

Wheelage Payments $ 0.00

Interest Accrued $ 1,179.36

TOTAL: $153,192.23

 

15. For the purposes of this trial and the Court's subsequent allocation of the monies paid into the Peoples Bank & Trust Company escrow account, and without Red Star or the Smith heirs waiving any of their rights under the respective

leases to audit the books and records of Leslie Resources, Inc.

to verify tonnage and the amount of royalties due, the parties

stipulate that the following tonnages have been mined from and

transported across the disputed area since the filing of this

action:

 

Coal Mined and/or

Transported Tons Mined From Tons Hauled

During the Month of: Disputed Area Across Disputed Area

October '92 14,969.12 -0-

November '92 15,420.46 -0-

December '92 5,447.19 -0-

January '93 -0- -0-

February '93 12,672.93 -0-

March '93 7,990.79 -0-

April '93 -0- -0-

May '93 -0- -0-

TOTAL: 56,500.49 -0-

15. All production royalties and wheelage payments deposit-

ed with Peoples Bank & Trust Company of Hazard, Kentucky as set forth in the preceding Stipulation are for coal mined or transported across "Disputed Area 1" as shown on the "Baker Map"

attached to the complaint as Exhibit A.

16. The principal of all production royalties, minimum royalties, and wheelage payments paid into the escrow account at

Peoples Bank & Trust Company by Leslie Resources should be

distributed to either Red Star or the Smith heirs,

whichever the Court determines to have superior title to the

Disputed Area, according to the royalty and wheelage rates set

forth in the respective leases. Should Leslie Resources be

determined to have paid into the escrow account a principal sum

which is greater than the amount due Red Star or the Smith heirs under the appropriate lease, the balance should be refunded to Leslie Resources. All accumulated interest should follow the distribution of the principal.

17. In 1937 Polly B. Smith and her husband J. B. Smith as

plaintiffs filed a suit in Knott Circuit Court against Ben

Martin, Ida Martin, Alphonso Combs, Stella Combs, Grace Combs,

and Gladys Combs, concerning that the property now in dispute in

this bankruptcy court proceeding.

18. Subsequent to the filing of the Knott Circuit Court

lawsuit in 1937 due to amendments in the pleadings and substitu-

tion of the parties the named parties to the suit became Polly B. Smith, Delza B. Smith, Alta B. Smith, Carley Smith, Curtis Smith, Ernest Smith, Clyde Smith, Shelby Smith, May Logan, Ruth Raleigh, Alta Logan, John Dennis Smith, John Ellis Smith, and Bill Smith, and B. F. Combs, Executor of the Estate of Polly B. Smith as plaintiffs and Ben J. Martin, Ida Martin, Hattie Casebolt, Dallas Casebolt, Ballard Casebolt, Lawsie Martin, Sudie Childs, Swetie Doyles, Alphonso Combs, Stella Combs, Grace Combs, Gladys Combs and A. C. Miller, defendants. The judgment in this lawsuit was filed November 20, 1943 and entered in order Book 16, Page 264, Knott Circuit Court Clerk's Office. This judgment is hereinafter referred to as the "1943 judgment".

19. The 1943 judgment was appealed to the Kentucky Court of Appeals and was upheld by a decision of that Court as reported in 307 Ky. 610, 211 S.W.2d 812 (1947).

20. The 1943 judgment has never been set aside, reversed,

amended or changed in any way by any Court.

21. The debtor/defendant Red Star had actual and constructive knowledge of the litigation between the Smith heirs and Ben Martin heirs when it acquired its property.

22. Red Star's chain of title includes the following deeds:

A. Gladys Combs Arthur, et al. to Robert H. Barnett, dated April 26, 1984, recorded in Deed Book 131, Page 590, Knott County records.

B. Robert H. Barnett to Rocky Madden, dated July 17, 1984, recorded in Deed Book 131, Page 612, Knott County records.

C. Rocky Madden by Phillip Childers, Master Commissioner,

to Robert Barnett, dated March 24, 1988, recorded in Book 143,

Page 457, Knott County records.

D. Robert H. Barnett to Red Star Coal Company, dated April 5, 1988, recorded in Book 143, Page 484, Knott County records.

23. In the deed from Gladys Combs Arthur to Robert Barnett

and the deed from Robert H. Barnett to Rocky Madden, there is the following language: "It is understood by the second party herein that there is currently pending a civil suit in Knott Circuit court concerning this property and second party takes this property subject to this suit and first parties make no warranties concerning title".

24. The 1943 Judgment refers to a map prepared by Benton

Stamper in defining the subject property (the "Benton Stamper

map") and such map is missing from the record in the case in

which the 1943 Judgment was entered (the "Original Litigation").

25. In the 1943 Judgment, the Knott Circuit Court awarded

the plaintiffs therein title to approximately 700 acres (the

"1943 Judgment Tract"). The Smith heirs have asserted that the

1943 Judgment Tract includes, among other lands, a part of the

Gladys Arthur Tract and other tracts all the way to the head of

Walkers Branch.

26. In 1975, Gladys Combs Arthur filed an action in the

Knott Circuit court to modify the final judgment which had been

entered in the Original Litigation, alleging that the Gladys

Arthur Tract should be excluded from that judgment because it

lies outside the boundary of the property claimed by the

plaintiffs in the petition filed in the Original Litigation and

amendments thereto. No decision on that motion filed by Gladys

Combs Arthur has been rendered by the Knott Circuit Court.

27. The prevailing party in this adversary proceeding is

entitled to all minimum and production royalties and wheelage

payments payable with respect to Disputed Area #1, pursuant to

the terms of such prevailing party's lease agreement with Leslie

Resources, Inc.

The Smith heirs filed a Motion for Summary Judgment on June 30, 1993. The Motion was heard on the date set for trial, July 14, 1993. At the hearing, the Court found that Gladys Combs Arthur had been joined as a party in the 1943 proceeding in Knott Circuit Court, and sustained the Motion for Summary Judgment to that extent. Ruling was reserved on the issue of whether the judgment of the Knott Circuit Court was void for vagueness. The Motion for Summary Judgment was overruled on the issue of whether the judgment gave the plaintiffs therein more than they had asked for in their complaint. Trial of the within matter was later reset to October 18, 1993.

As set out in the Joint Stipulation, litigation of the dispute which underlies this matter goes back more than fifty years. The dispute itself goes back even farther. Disagreement concerning the common boundary line between Polly Smith and Carrie Combs first arose around 1917 or 1918. Both parties did agree, however, that the boundary line was the east boundary of a 1500 acre patent that had been granted to Esau Hammonds in 1846. The parties employed a surveyor named Benton Stamper to survey the line for them.

Carrie Combs died in 1919, and in 1926 her children partitioned her property into seven tracts of land. Tract 1 was conveyed to Gladys Combs, one of Carrie Combs' daughters, by a Commissioner's Deed dated November 16, 1926. This deed conveyed two tracts of land, the first of which was a 45.6 acre tract. This is the property claimed by Red Star which is in dispute in this matter.

In 1937, Polly Smith and her husband filed suit in Knott Circuit Court against Ben Martin, Ida Martin, Alphonso Combs, Stella Combs, Grace Combs and Gladys Combs. Their petition stated that they owned a certain tract of land and that Ben Martin and others who had acquired parts of the Carrie Combs farm were disputing their ownership. They later amended their petition to correct the description. Polly Smith died while the lawsuit was pending and her children, devisees of property under her will, were substituted as parties.

The Knott Circuit Court entered a judgment in 1943 in favor of the Smith heirs. The judgment located the boundary line described in the petition and amended petition as the Esau Hammonds patent line. The judgment provided that

...the land in controversy herein and hereinafter described in this judgment are as located by the plaintiffs and that the predecessors in title of both plaintiffs and defendants many years ago agreed upon the location of the lines of the Esau Hammons 1500 acre patent on the waters of Walkers Branch of Troublesome Creek and that they at the same time agreed upon and established a division line between them as located by the witness Benton Stamper, as hereinafter particularly described. It is considered and adjudged that the said 1500 acre Esau Hammons patent ... and John Walker 100 acre patent ... and John Walker 200 acre patent ... and John Walker 700 acre patent ... are as located and claimed by plaintiffs herein; that the first line of said Hammons patent should be located according to the call shown in the patent and that said John Walker 700 acre patent begins on the point about 600 feet below the mouth of Mill Creek of Troublesome Creek as shown on the map filed by Benton Stamper.

The Martins appealed the judgment. The Kentucky Court of Appeals considered extensive briefs and heard oral arguments. It affirmed the Knott Circuit Court opinion in Martin v. Smith, 307 Ky. 610, 211 S.W.2d 821 (1947), stating, "In all probability as an original decision we would reach the same conclusion as the Chancellor. In any event, we cannot say that the judgment upon the contradictory evidence is erroneous."

In 1975 Gladys Combs Arthur, predecessor in title to Red Star, filed a motion to have the 1943 judgment set aside. She had been allotted tract 1 in the 1926 partition of the Carrie Combs farm and was one of the original defendants in the suit in Knott Circuit Court, as set out above. She denied knowledge of the suit until after the appeal was concluded. This attempt to re-open the old suit has never been resolved.

At trial, both the plaintiff and the defendant presented the testimony of licensed surveyors concerning whether or not the judgment description could be plotted and, correspondingly, whether it included all of the disputed area, especially that identified as the head of Walkers Branch. As might be expected, the witness for Red Star did not believe that the judgment description could be plotted or that it included the head of Walkers Branch. Further, the Red Star witness maintained that a determination of what was included in the judgment description could not be made without the benefit of the map prepared by Benton Stamper, the surveyor whose work formed the basis of the 1943 judgment. The witnesses for the Smith heirs were of the opposite persuasion.

Disagreement among the surveyors about whether the judgment can be plotted is indicative of the problems surrounding attempts to interpret the old patents and deeds that abound in the courthouses of eastern Kentucky. Descriptions are vague, artificial monuments, and even natural monuments such as trees, disappear over time or are affected by activities such as mining. Other natural monuments such as ridges, mountains, creeks, and branches endure relatively unchanged. Opinions about what these descriptions encompass will naturally vary from expert to expert.

This Court finds it significant that the witnesses for the Smith heirs, Doug Baker and Robert Ray, actually went on to the disputed property, located natural monuments described in pertinent documents, and using these were able to plot the judgment description. Red Star's witness, Roger Cornett, went about the task of plotting the judgment description with a computer. While this is certainly an accepted and useful technique, and Mr. Cornett is a qualified surveyor, the Court is not as persuaded by his testimony as by that of Mr. Baker and Mr. Ray.

The plotting of the judgment description is only one prong of Red Star's approach, however. It contends that Benton Stamper, did not intend to, and in fact did not, include the head of Walker's Branch in his survey. Therefore, Red Star contends, the disputed area could not be included in the judgment description. Red Star points to testimony offered by Benton Stamper in his deposition given in the 1943 case:

Q. 75 Mr. Stamper, do you show on your map the top of the ridge where it runs around the extreme head of Walker's Branch?

A. No, sir.

Q. 76 The territory ran off your map?

A. Yes, sir.

Q. 77 Do you show the top of the ridge in the head of Walker's Branch on the West side of the branch coming back toward the mouth of the branch?

A. No, sir, I don't.

...........

Q. 79 Does that affect the land in controversy?

A. No, sir.

At pp. 861-862, vol. 6, Smith Exh. 17.

The Smith heirs point to the following testimony in response:

Q.-444 Now your interpretation of this deed, Mr. Stamper, the way you have pointed it out on your map, you have to follow the ridge between Mill Creek and Walker's Branch to the head of Walker's Branch' thene (sic) you have to follow the ridge between Walker's Branch and Clear Creek, and then the ridge between Walker's Branch and Main Clear Creek; then the ridge between Dark Hollow and Short Branch; then the ridge between Troublesome and Short Branch to get back to the Boggs line the way you tried to get there?

A. Looks like you would have to run that way to include all those patent lines, the way the deed called, by follwoing (sic) the ridge to include the 100 acre survbey and also the 200 acre John Walker survey.

......

Q.-490 Mr. Stamper, in speaking of this deed from George Martin to his children after you run around the two John Walker patents so as to cover them, you get back to the top of the Mill Creek ridge at the North-east corner of the 200 acre survey on top of the ridge, don't you?

A. Yes, sir. The deed calls for following the meanders of the ridge to Boggs line.

Q.-491 Now, Mr. Stamper, I will ask you if you can possibly reach the Boggs line by following the meanders of the ridge other wise than running along the top of this ridge between Mill Creek and Walker's Branch and around the head of Walker's Branch and down the ridge between Walker's Branch and Clear Creek and between Walker's Branch and perhaps the head of Short Branch? Can you reach Boggs line in any other way according to this deed?

A. Could not.

......

Q.-574 Mr. Stamper, in interpreting the George Martin deed to his children, starting where this line intersects with the 100 acre and 200 acre surveys in going around these surveys you come to the ridge between Walker's Branch and Short Branch, do you not?

A. After I get around the head of the Walker Branch and back down (unreadable) distance I get back between Walker's Branch and Short Branch.

Q.-575. Now starting at the white oak and chestnut oak on top of the ridge between Mill Creek and Walker's Branch and following the lines of the 100 acre John Walker survey and the 200 acre John Walker survey, where do you come to the top of the ridge on the opposite side of Walker's Branch?

A. That is between Short Fork and Walker's Branch.

At pp. 913; 922; 934-935, vol. 7, Smith Exh. 17.

The Knott Circuit Court had all of Benton Stamper's testimony before it in the 1943 case, as well as the map he prepared which apparently has been lost for some years. The Court of Appeals had the record in the case before it. In addition, the Court of Appeals heard the same argument from the appellants (Ben Martin et al.) of the Knott Circuit Court decision as Red Star makes herein. In his brief before the Court of Appeals, counsel for the appellants argued as follows:

The appellees claim everything east of the eastern line of the Esau Hammond 1500 survey, up to the line between the third and fourth corner of the John Walker 200 acre patent. The judgment in this case actually gives the appellees more land than they asked for or claim in this action. ... The map relied on by appellees shows the fifteenth corner of the Esau Hammond 1500 acre survey to be on top of the ridge when, as a matter of fact, it is down in the Dark Hollow.

At p. 7, vol. 8A, Smith Exh. 17.

Conclusions of Law

This Court has jurisdiction of this matter pursuant to 28 U.S.C. 1334(b); it is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A) and (O). The issue before the Court is whether the 1943 Knott Circuit Court judgment and Court of Appeals decision upholding that judgment is res judicata, so as to preclude consideration of Red Star's claim.

As the Smith heirs point out, the elements required for finding that an action is barred by res judicata are that the suit is between the same parties, or parties in privity with them, for the same cause of action concerning the same subject matter, after a consideration by the former court of the merits of the case, the final judgment never having been reversed or modified. This Court agrees with the Smith heirs that the within matter meets these criteria.

Red Star contends that the 1943 judgment is void for vagueness because the judgment description cannot be plotted with accuracy without the benefit of Benton Stamper's missing map. This Court does not agree. As set out above, whether or not the judgment description can be plotted is a matter of opinion, depending on whose witness is offering testimony. This Court finds that the Smith heirs presented sufficient evidence to support a finding that the 1943 judgment is not void for vagueness, and so should be considered res judicata.

Further, this Court does not agree with Red Star's contention that the 1943 judgment is void because it fails to conform to the pleadings in the original case and awards the Smith heirs more than they claimed. Again, as set out above, the record in this case shows that both the trial court and the Court of Appeals had the testimony of Benton Stamper and all the other witnesses before them. Whether or not any of this testimony may be characterized as "contradictory", both courts came down on the side of the Smith heirs. This question has been adjudicated, the very same argument was put before the Court of Appeals and rejected.

This Court therefore finds that there is no basis for a finding that the 1943 judgment is void on either of Red Star's theories.

Dated:

By the Court -

 

 

_______________________________

Judge

 

Copies to:

Debtor

Ronald G. Combs, Esq.

James A. Combs, Esq.

Bruce E. Cryder, Esq.

Christopher M. Hill, Esq.