United States Court of Appeals Tenth Circuit

354 F.
2d 217
Gladys Iola HOWARD, also known as Gladys Harp Howard,

Timothy Gordon Howard, a Minor by his Next Friend
Gladys Iola Howard, and H. Gordon
Howard, Appellants,
v.
The FIRST NATIONAL BANK OF DENVER, INC., a
Colorado Banking
Corporation, Appellee.
No. 8286.
United States Court of Appeals Tenth Circuit.

Dec. 23, 1965, Rehearing Denied Jan. 28, 1966.
H. Gordon Howard, appellant, pro se.

Gladys Iola Howard and Timothy Gordon Howard, appellants, submitted
on brief, pro se.
Raymond B. Danks, Denver, Colo. (Hughes & Dorsey, Denver, Colo.,
were with him on the brief), for appellee.
Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit
Judges.
BREITENSTEIN, Circuit Judge.
The appellants-plaintiffs, appearing pro se, brought this suit to have a Colorado
state court judgment 'impeached, set aside, and declared to be an absolute
nullity.' That judgment was obtained in an action brought by Mary Steinhart
against appellant H. Gordon Howard to compel the reconveyance of real estate
allegedly obtained by fraud. After the state court trial Mary Steinhart died and
the International Trust Company, executor of her estate, was substituted for her.
Judgment against H. Gordon Howard was affirmed by the Colorado Supreme
Court1 and the United States Supreme Court denied certiorari. 2 Thereafter
International Trust Company merged with appellee First National Bank of
Denver and First National became the executor of the Steinhart estate. On
December 19, 1961, the First National was discharged as executor.3 On the
motion of the First National the district court dismissed the action and this
appeal followed.
2
The theory of the appellants is that the Colorado judgment is void because of
the nonjoinder fo Gladys and Timothy Howard. The land in dispute is located
in Illinois and was conveyed by Steinhart to H. Gordon Howard who allegedly
put it in trust for the benefit of his wife Gladys and his son Timothy. The
nonjoinder of the trust beneficiaries was noted by the Colorado Supreme Court
which pointed out that the action sought only in personam relief against H.
Gordon Howard and could not determine the rights of the trust beneficiaries.4
The Colorado court had jurisdiction over the personal action against H. Gordon
Howard. The nonjoinder of the trust beneficiaries does not void the judgment.
The issues determined by it are res judicata so far as H. Gordon Howard and
the First National are concerned, and the judgment is not subject to review in
federal court.5
The trust beneficiaries now assert against the First National claims which they
did not present in the state action because they were not parties thereto and did
not intervene therein. In our opinion they may not maintain such claims. The
entire interest of the First National in the property came from its executorship
of the Steinhart estate. It was discharged as such executor more than three years
before the pending suit was brought. Nothing in the complaint or brief of the
appellants suggests that the First National has any present interest in the land or
that it represents any one in regard thereto. The fact that the First National was
a party to litigation, the outcome of which displeases the trust beneficiaries,
does not give them any cause of action against it.
Affirmed.
Howard v. International Trust Company, 139 Colo. 314, 338 P.2d 689. The
pertinent facts are stated in that opinion and need not be repeated here
361 U.S. 916, 80 S.Ct. 258, 4 L.Ed.2d 184
This was established by an affidavit which was submitted in support of the

motion to dismiss and which is not contested
338 P.2d 689, 693-694. The Colorado Supreme Court also commented that H.
Gordon Howard in his answer had sought rescission of the transaction on the
ground of fraud and return of consideration without mentioning the interest of
any other person; that the request for joinder was not made until day of trial;
and that: 'It may be noted in passing that if the plaintiff's (Steinhart's) interest in
the Illinois farm was a life estate only, as appears to be the case, then whatever
interest the dofendant (H. Gordon Howard) acquired by the deed in
controversy, or which was transmitted to the beneficiaries by his declaration of
trust, terminated upon the death of the plaintiff.'
See Daniels v. Thomas, 10 Cir., 225 F.2d 795, 798, certiorari denied 350 U.S.
932, 76 S.Ct. 303, 100 L.Ed.2d 815

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354 F.

Gladys Iola HOWARD, also known as Gladys Harp Howard,

United States Court of Appeals Tenth Circuit.

H. Gordon Howard, appellant, pro se.

361 U.S. 916, 80 S.Ct. 258, 4 L.Ed.2d 184

This was established by an affidavit which was submitted in support of the

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