121 Wash. 211 | Wash. | 1922
is an action for separate maintenance, brought by Celia Buttnick against her husband, Morris Buttnick. The other parties were brought in as defendants upon allegations of an alleged conspiracy between them and the husband to
Hereinafter, Morris Buttnick will be spoken of as the appellant. He and the respondent were married on May 16, 1900, at Victoria, B. C. The principal claim of the appellant, on the appeal, is that the court erred in finding that he and the respondent are, and since May 16, 1900, have been, husband and wife, and in refusing to find that the marriage was illegal and void, and in refusing to enter a decree annulling the marriage. It appears that, prior to 1905, the appellant neglected Ms wife and their three cMldren, whereupon she brought an action against him in the superior court of King county for separate maintenance. He appeared in that action, the trial of which, on March 27, 1905, resulted in a finding, among others, “that plaintiff and defendant now are and ever since on or about the 16th day of May, 1900, have been husband and wife,” and a judgment awarding her certain specific
“The whole theory of the doctrine of res judicata is that a question once decided by a court of competent jurisdiction having jurisdiction of the parties is finally decided, until reversed upon appeal or otherwise set aside in some lawful way. Averbuch v. Averbuch, 80 Wash. 257, 141 Pac. 701; Perlus v. Silver, 71 Wash. 338, 128 Pac. 661; Stay v. Stay, 53 Wash. 534, 102 Pac. 420; Bruce v. Foley, 18 Wash. 96, 50 Pac. 935; Harding v. Harding, 198 U. S. 317; Kalisch v. Kalisch, 9 Wis. 482; Hoag v. Hoag, 210 Mass. 94, 96 N. E. 49, 36 L. R. A. (N. S.) 329.”
The record upon which respondent’s plea of res judicata rests is admitted by the appellant and we think it binding upon him in this case.
A few days after the judgment in the former suit was entered, appellant resumed his former course of living with his wife and children, and continued to do so thereafter for over thirteen years, or until about two years before the commencement of this action. He now contends that, if the judgment in the former hearing was res judicata as to the marriage relation, it was so as to the amount awarded for maintenance, and hence the judgment herein in that respect, which is in excess of the amount formerly allowed, is unwarranted and that respondent’s only remedy was in the orig
Further, it is contended that, assuming a valid marriage between the parties, the amount awarded is not justified by the evidence. The evidence on this feature of the case, as in other respects, is exceedingly voluminous and largely, circumstantial, and while it cannot be easily repeated in substance nor summarized, examination of it satisfies us that it sustains the judgment entered.
Another assignment is that the court erred in giving the respondent a lien on the fifty shares of stock of the Buttnick Jobbing & Investment Company held by Lena Buttnick and enjoining her from disposing of or encumbering it. This also is largely a question of fact. She is a sister of appellant, while J. M. Buttnick is their father. The trial court found, upon what appears to be a preponderance of the evidence, that the
Finally, it is claimed the court should have granted appellant relief upon his cross-complaint for a divorce. Upon examination of the evidence, we reach the same conclusion that the trial court did on this feature of the controversy.
Judgment affirmed.
Parker, C. J., Bridges, and Tolman, JJ., concur.