99 Neb. 253 | Neb. | 1916
Lead Opinion
On the first trial of this cause in the district court for York county, a general demurrer to the petition was sustained and plaintiff appealed to this court. We found that tbe petition stated a cause of action, and tbe judgment was reversed and tbe cause remanded for trial. 95 Neb. 757. Tbe trial in tbe district court after tbe case was remanded resulted in a decree in favor of plaintiff for $10,000 alimony. Defendant appeals.
Our former opinion contains quite a full recital of tbe troubles of plaintiff and defendant, while husband and wife, and a sufficient statement of tbe issues involved in tbis suit. Tbe parties were divorced March 2, 1911, in the court of chancery in Benton county, Arkansas, and plaintiff, by tbe decree in that case, was restored to her maiden name of Bodie, which accounts for tbe difference in the names of tbe parties in tbe present suit. As reference will frequently be made in tbis opinion to tbe parties as they appear in tbe Arkansas suit and as they appear in the present suit, we will, for tbe purpose of avoiding any confusion as to tbe parties, refer to tbe plaintiff in tbis suit, who was tbe defendant in tbe Arkansas court, as “Bodie” and to her former husband, defendant in tliis suit, as
In our former opinion we determined (p. 762) : “An examination of the Arkansas statute above set out shows that in that state no provision is made authorizing a money judgment as alimony. The law expressly declares just what interest the wife shall take in both the real and personal property of her husband, where she is granted a divorce. As to real estate, the provision is that she shall be entitled to ‘one-third of all lands of which her husband is seised of an estate of inheritance at any time during the marriage for her life, unless the same shall have been released by her in legal form.’ It will not, of course, be contended by any one that under that statute the Arkansas court could have vested in Mrs. Bates, for life, one-third
In Ecker v. Ecker 22 Okla. 873, we have a discussion of this identical section, viz.: “The second assignment of error urged is to that part of the master’s report recommending that defendant be awarded, and to that part of the judgment awarding to defendant, one-half of plaintiff’s property or one-half of its value. At common law a delinquent wife, on account of whose conduct the husband obtained a divorce, was not entitled to receive alimony, but in a'number of the states, including the state of Arkansas, from which state the statutes in force in the Indian Territory were adopted, the common law has been modified by statute. The statute governing in this case reads: (The section of the statute quoted in the opinion is a verbatim copy of 2681, Kirby’s Digest, under consideration in this case.) Under the language of this statute, or similar language of the statutes of other states, the courts have held that the authority of the court to make orders touching the alimony of the wife is not limited to those cases in which she prevails, or that whether the guilty wife will be granted alimony and the amount thereof is within the discretionary power of the court, to be controlled by the circumstances of each case. (Citing cases.) It is, however, a discretion that a court should at all times
In Pryor v. Pryor, 88 Ark. 302, it is said: “The first question presented is whether or not the chancery court had jurisdiction to decree an allowance of alimony to a guilty wife against whom a decree for divorce was granted.” The court then quotes from 2 Nelson, Divorce and Separation, sec. 907, where the question of the allowance of alimony to a wife, when the husband has obtained a divorce, is discussed along the same lines as the discussion in 1 R. C. L., above cited. The court then say: “A statute of this state provides that.” The court here quotes section 2681, Kirby’s Digest, and then adds: “Similar statutes in other states have been construed to have enlarged the powers of courts in divorce cases so as to empower them to allow alimony in any case, even to a guilty wife.”
The above authorities clearly show just what the legislature intended when it enacted section 2681, viz.: That this section was enacted in order to permit the chancery courts of the state to award alimony to the wife in cases where the divorce was obtained at the suit of the husband on account of her misconduct. In such cases the legislature very properly left it to the court to make “such order touching the alimony of the wife and care of the children, if there be any, as from the circumstances of the parties
In Wood v. Wood, 59 Ark. 441, 452, it is said: “Appellant did xxot undertake to show, in her original or amended hill for divorce, that she was entitled to the bexiefits of the act of March 2, 1891. Her original bill was filed before it was passed, axxd it was not amended thereafter in that respect. For the purpose of showing that she was entitled to considerable alimony,' she alleged ixx the original bill that the defendant was xxot worth less thaxx $200,000, but did xxot say in what his estate coxxsisted, or that it was within the jurisdiction of the court. No information is given to show that the court had the jurisdiction, by reason of the quality aixd locatioxx of the property, to set apart to her one-third of it under the act. It might have beexx real estate situate in another state. Nothing appears in the record, outside of the evidence, to show that the court committed an error of law ixx failing to divide the estate of the husband in accor'daixce with the act.”
We are unable to read that language of the court aixcl reach any other coxxclusioxx than that the law of Arkansas limits the jurisdiction of a ■ court of chancery in fixing aliixxonv ixx a divorce case to property within the jurisdiction of the court. There xyas, then, just ground for the contention in the Arkansas court that that court had no jurisdiction to allow the wife aliixxony on accouixt of the real estate of the hxxsband ixx Nebraska. Was such a coxxtexxtioix made? It is conceded, and the record before xxs clearly shows, that defexxdant did, with the help' of able counsel, strenuously contend ixx the Arkansas court that that court could not in that case allow alimony to Bodie on account of the Nebraska lands. And the record also shows that the court did not in fact make any allowance on accoxxnt of the Nebraska lands. It is shown by the overwhelming weight of the evidence before us that the Arkansas court allowed Bodie $5,111 “ixx full of alixnoxiy
From what has just been said, it will be seen that defendant succeeded in his contentions in the Arkansas court that that court was without jurisdiction, and prevented any-allowance on account of the Nebraska land. He now, in this case, says that his contentions there 'were unwarranted, that the court did have jurisdiction, and by these inconsistent positions he insists that -he has defeated the just claims of his wife. This, of course, he cannot be allowed to do.
In Cross v. Levy, 57 Miss. 634, it was held that a party who had agreed that a justice of the peace had jurisdiction of a case could not afterwards, as against the same party, contend that the justice did not have such jurisdiction. In Long v. Loclcman, 135 Fed. 197, it was held that a party, who, in a suit in the district court of the Arkansas district, had alleged that the district court of the Colorado district had exclusive jurisdiction of the case and upon that contention had procured the case to be dismissed by the court of the Arkansas district, could not afterwards be heard to contend against the same party that the court of the Colorado district was without jurisdiction when sued in that district. The court said: “In my opinion, Williams in his lifetime was, and the administrator now is, estopped from denying that his residence was in Colorado when the petition herein was filed. * * * Every element of estoppel is in the evidence, and the evidence on that question is not in conflict. Williams, under oath, said his residence was in Colorado. He received the advantage from that oath. The petitioning creditors acted on it. They filed their petition here. They have incurred much expense by reason of that oath. It cannot now be controverted. * * * I pass those questions by, and hold that
Is the judgment in the Arkansas court res judioalaf Thomas v. Thomas, 27 Okla. 784, construing an exactly similar statute, cites Bowman v. Worthington, supra, and quotes with approval the holding in that case above set-out, and adds: “The trial court not possessing jurisdiction to entertain the question of the disposition of this property in the divorce proceeding, the same did not become res adjudicaba by reason of that action, hence is left open for determination in this case.”
Matson v. Poncin, 152 Ia. 569, holds: “A judgment to be available as an estoppel must have decided the particular matter involved in the later suit; it is not sufficient that the same question may have been determined.”
In 1 Herman, Estoppel and Res Judicata, sec. 252, it is said: “The rule that estoppels must be certain to every intent, and precise and clear, is peculiarly applicable to estoppels by record and judicial proceedings; and, for this reason the record of a judgment must show with some degree of certainty the precise points determined, and not from inference or argument; and, where it gives no indications at all of what particular matters were adjudicated, it leaves the question unsettled, and is not available either as an estoppel or anything else, but merely evidence of its own existence. The conclusive effect of a judicial decision
In Packet Co. v. Sickles, 72 U. S. 580, 592, it is said: “As we understand the rule in respect to the conclusiveness of the verdict and judgment in a former trial between the same parties, when the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive, per se, it must appear, by the record of the prior suit, that the particular controversy sought to be concluded was necessarily tried and determined — .that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties; and further, in cases where the record itself does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record may be received to prove the fact; but, even where it appears from the extrinsic evidence that the matter was properly within the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination, it will not be concluded.”
In Russell v. Place, 94 U. S. 606, the court, speaking through Mr. Justice Field, said: “It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be ,any uncertainty on this head in the record — as, for example, if it appear that several distinct matters may have
In Mercer Co. v. City of Omaha, 76 Neb. 289, the first paragraph of the syllabus holds: “The rule is well settled, both in this state and elsewhere, that a. judgment is an estoppel only as to those matters actually in issue and tried and determined in the action in which it is rendered.”
Finally, we cite Slater v. Skirving, 51 Neb. 108. The opinion in this case was by Mr. Commissioner Irvine. It shows a very careful consideration by that talented commissioner of a plea of res judicata. Beginning on the fourth line from the bottom of page 112, it is said: “The general principles governing the pleading and proof of former judgments as estoppels are now quite well settled by so long a line of authorities that it is useless to review them. Generally speaking, in order that a judgment in one action shall operate as an estoppel in a second action, it must be made to appear not only that there was a substantial identity of issues, but that the issue as.to which the estoppel is pleaded was in the former action actually determined; and, where the record is uncertain, parol evidence is admissible to show what issues were determined in the former suit (citing case), and we think that, while the authorities are conflicting, their greater weight is in favor of the view that the burden of proof is-upon the party pleading the estoppel to establish the fact of the. adjudication by extrinsic evidence if necessary, and not upon the other party to show that an issue which might have been adjudicated was not.”
Judge Humphreys, who presided at the - trial of the case in Arkansas, was called as a witness in this case. He was interrogated as to whether he took into consideration ■any ownership or equity of Bates in the land in Nebraska. His answer was: “I think I did; it was my intention to cover the whole case.” He stated that he was testifying from his best recollection, but a reading of his entire testimony will show that his recollection was not any too clear. Bates, himself, and Mr. Walker, his attorney at the Arkansas trial, both testified that the chancellor took the Nebraska land into consideration in determining the amount which should be allowed Bodie as alimony. This testimony is controverted by the testimony of Mr. Lindsey, Mr. Shannon, Judge McGill, and Judge Davidson, all of whom were present and participating in the trial as counsel for Bodie at the time the chancellor rendered his decision, and by Mr. Heaslet, clerk of the court of chancery in which the case, was tried. These five witnesses all testified clearly and explicitly that the chancellor an•nounced from the bench at the time he decided the case that he did not .have jurisdiction over the Nebraska land, and could not consider the same. The four lawyers representing Bodie are gentlemen of high standing in the profession of the law, and, with the exception of Judge Davidson, have no present interest in the litigation. Mr. Heaslet was clerk of the court, and his testimony stamps him as a candid and truthful gentleman. There is nothing to show that he is in any manner interested in either of the parties to the suit, and it cannot be supposed that he would have any motive in giving testimony about a transaction in the court of which he was clerk, at variance with that given by his presiding judge. When you add to the
It is urged that the failure of Bodie to prosecute an appeal from the decree of the Arkansas court is a bar to ■ the present suit. For the reasons above stated, this contention is without merit. The Arkansas court being Avithout jurisdiction to take the Nebraska land into account in fixing the amount of alimony, and having refused so to do, its judgment was right, and an appeal would have been unavailing. There was nothing to appeal from. Nor is there any merit in the contention that the decree in this case does not give full faith and credit to the judgment of a sister state.
On the trial of this case the learned trial court followed our former decision. He was fully justified under the evidence in doing so, and we cannot, without violating every principle of law and justice, reverse his judgment. If he erred at all, it was in not alloAving Bodie more than 110,600.
The judgment of the district court dismissing the petition of intervention of the interveners is so clearly right that we shall not spend time discussing it.
The motion of plaintiff for an allOAvance of attorney’s fees is overruled. The judgment of the distinct court is in all respects
Affirmed.
Concurrence Opinion
concurring.
No one denies that there was at least serious doubt as to the jurisdiction of the Arkansas court to give the wife anything on account of the Nebraska land. Their statutes expressly provided that, when the wife obtained the divorce, the court should give her one-third of the personal property and the use of one-third of the husband’s real estate during her life. The court could not give her the use of real estate that was not within the jurisdiction of the court. That proposition was contested vigorously before the Arkansas court, the husband contending earnestly by his attorneys that the court could not give her anything on account of foreign land, and the court, as is demonstrated from the record, did not give her anything.
It appears conclusively from the record that the Arkansas court allowed her the money which she had loaned to the defendant, and the one-third of his'personal property there in Arkansas, and the value of her life interest in the real estate that he had. there. These items added together make the exact amount that the court allowed her, so that the record speaks for itself that the Arkansas court did not as a matter of fact give her anything on account of the York county land.
In Cizek v. Cizek, 76 Neb. 797, it was decided: “Under section 27, ch. 25, Comp. St. 1905, the district court has a continuing power, after a decree of divorce and alimony has beeh granted, to review and revise the provisions for alimony at its subsequent terms on petition of either of the parties.” In the opinion the court said: “In the case at bar a good and sufficient reason is shown why the former decree for alimony should be modified. * * * Having demonstrated that the attempted adjudication of the court upon the question of alimony was nugatory and of no effect, he cannot now be heard to urge it is a final adjudication of the matter.” So in this case the defendant on this trial insisted that the court could not give plaintiff anything on account of the Nebraska land. filhe
Dissenting Opinion
dissenting.
The simple question presented by the appeal should have been determined as follows: An independent suit in equity to recover additional alimony based on defendant’s ownership of land in Nebraska should be dismissed, where the uncontradicted evidence shows that plaintiff had procured a divorce and alimony in another state in a court having jurisdiction to consider the Nebraska land in awarding alimony, that both parties had appeared therein in person and by counsel, that each had asked for affirmative relief, and that the value of defendant’s interest in the Nebraska land had been made the subject of pleading, proof and argument.
For the purpose of stripping from the controversy conflicting proofs relating to extraneous facts and confusing principles of law foreign to the issues, I prefer to make my own statement of the case.
Plaintiff had been the wife of defendant, and, in the court of chancery for Benton county, Arkansas, had procured a decree of divorce' and alimony on a cross-bill filed by her in a divorce suit instituted by her husband. The Arkansas court granted the divorce March 2, 1911, allowing “$5,111 in full of alimony and all other demands set forth in the cross-bill.” From that judgment no appeal was taken. The petition in the present case was filed in the district court for York county, Nebraska, November 24,1911. It contains the plea that defendant owns in York connty, Nebraska, lands worth $48,000, which the Arkansas court had no jurisdiction to, and did not, consider in awarding alimony. To the petition for additional alimony defendant demurred on the ground that the Arkansas decree is a bar to a further recovery and the plaintiff is defeated by estoppel, because she accepted and retained the fruits of the former adjudication. The trial court sustained the demurrer, and, from a dismissal of the action for additional alimony, plaintiff appealed to this court.
The question raised may be stated as follows: Under the facts pleaded and proved in the present case, did the court of chancery of Benton county, Arkansas, have jurisdiction to consider the value of defendant’s Nebraska lands in determining the amount of alimony to which plaintiff was entitled?- If this inquiry should be answered in the affirmative, the question now in controversy was adjudicated in the former action for divorce. In that suit both parties appeared before the court in person and by counsel, each asking for affirmative relief. Defendant’s' interest in the York county land was there put in issue by the pleadings. Proof of its value was adduced at great length. Whether the Arkansas court, in determining the amount of plaintiff’s alimony, had jurisdiction to consider defendant’s Nebraska land in York county was a question argued at the trial of the action for a divorce.
It is the policy of the law to determine in one action litigable questions relating to divorce and alimony, unless the legislature has otherwise provided. Society’s interest in proper domestic relations and the rights of parties to a suit for a divorce require a complete adjudication in a single action, where jurisdiction to sever marital relations and to adjust property rights exists. Owing to a controversy over the power of an Arkansas court to consider the value of Nebraska land in awarding alimony, the parties have been permitted to narrate in the courts of two states the unhappy and distressing incidents of their max*-' ried life.
The former appeal presexxted the sufficiency of a petition alleging that the following provision of an Arkansas
“Where the divorce is granted to the wife, the court shall make ah order that each party be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife so granted a divorce against the husband shall be entitled to one-third of the husband’s personal property absolutely, and one-third of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form.” Kirby’s Digest of the Statutes (1904) sec. 2884.
After the case had been remanded to the district court, defendant pleaded and proved another Arkansas statute containing these words: “When a decree shall be entered, the court shall make such order touching the alimony of the wife and care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable.” Kirby’s Digest of the Statutes (1904) sec. 2681.
This statute, authoi’izing divorce courts to award alimony according to' the circumstances, uses general terms applying to all cases. It confers on the divorce courts of Arkansas the power of similar courts throughout the country. That act was passed long before the enactment invoked by. the majority to narrow the jurisdiction of divorce courts. The earlier statute is in full force according to its original import, since it has not been changed, modified or amended in a manner authorized by the constitution of Arkansas. The statutes may be construed together without doing violence to the rules of statutory construction. Both may be enforced. Under the earlier act, reasonable alimony may be determined from the circumstances of the parties and the nature of the case. For that purpose, land outside of Arkansas may be considered. Inquiry into general equity power of divorce courts of Arkansas is therefore immaterial. By proper pleadings
In Fischli v. Fischli, 1 Blackf. (Ind.) 360, the report shows that plaintiff procured a divorce from her husband in Kentucky, where the statute provided that the wife should have a specific share of his property. Subsequently she brought an action in Indiana for additional alimony based on property owned by defendant in that state. A demurrer to the petition was sustained, the court saying:
“This divorce having been granted in Kentucky, and a part, of the husband’s property decreed to the wife, it is important for us to know how far the rights of the parties, with regard to the provision made for the wife, were adjudicated and determined by the proceedings which were had in that state. For whenever a matter is adjudicated, and finally determined, by a competent tribunal, it is considered as forerer at rest. This is a principle upon which the repose of society materially depends; and it therefore prevails, with a very few exceptions, throughout the civilized world. This principle not only embraces what actually was determined, but also extends to every other matter which the parties might have litigated in the' case. * * * Guided by this principle, we should naturally suppose that the decree of the circuit court in Kentucky had done all that equity and justice required between the parties, if there is nothing in the record of their proceedings to evince the contrary, nor anything in the case to limit their authority; and that the rights of the parties, being thus determined, were subject to no further litigation. The separate maintenance that should be decreed to the wife out of the husband’s property, according to her condition in life, the fortune she brought, and her husband’s circumstances, was the subject matter of*274 adjudication before the court that granted the divorce; .and if that tribunal had the power to do ample justice between the parties, but has failed to do it, no other tribunal can take cognizance of the subject, and supply the deficiency.” See, also, McCormick v. McCormick, 82 Kan. 31.
The decision of the majority that the general statutory power of the Arkansas divorce court to award the wife reasonable alimony, upon the granting of a divorce, applies alone to cases wherein the husband obtains the decree is not warranted by the language or intention of the. lawmakers or by any construction of the supreme court of Arkansas. The earlier Arkansas statute was adopted in the Indian Territory.
In Ecker v. Ecker, 22 Okla. 873, it was argued that this section did not authorize a court to grant alimony to a wife when the divorce was granted to the husband for her misconduct. The supreme court of Oklahoma said: “Under the language of this statute, or similar language of the statutes of other states, the courts have held that the authority of the court to make orders touching the alimony of the wife is not limited to those cases in which she prevails, or that whether the guilty wife will be granted ali- ’ mony and the amount thereof is within the discretionary power of the court, to be controlled by the circumstances of each case.”
Adams v. Adams, 30 Okla. 327, is to the same effect.
In the majority opinion, an estoppel not well pleaded or properly proved is substituted for a technical plea of res judicata. The law on both subjects is confused in disregard of the following observation in Hanson v. Hanson, 64 Neb. 506: “Considerable obscurity may be avoided by keeping in mind the distinction between a judgment, urged as a technical bar to another action, and one that is urged as conclusive as to some one or more points tried and determined in a former action.”
In affirming the judgment allowing plaintiff additional alimony in the sum of $10,000, a technical plea of res judicata established by uncontradicted evidence has been
