26 N.Y.S. 1063 | N.Y. Sup. Ct. | 1894
The judgment appealed from was rendered in a suit brought to partition certain real estate, and it adjudges that the defendant Maria Linden is the widow of the testator, who devised the property to certain of the other parties to the action, and entitled to dower therein. The complaint alleges that she was married to the testator, James Linden, in the year 1842, but that the marriage was void, for the reason that at the time of its solemnization she had a former husband living, named John Craig, and that her marriage with Craig was in full force at the time of her marriage to Linden, and still continues to be. Upon the trial, plaintiff, against the objection of defendant Linden, introduced evidence tending to show her marriage with one John Craig prior to 1842, and
The question presented is whether the judgment roll is res judicata upon the question of the validity of the marriage with Linden, which it is conceded was solemnized in 1842. It is well settled that where a disputed question is litigated, and then directly passed upon by a court of competent jurisdiction, it cannot thereafter be brought in question in any subsequent action between the same parties or their privies. 2 Black, Judgm. § 504; Smith v. Smith, 79 N. Y. 634; Patrick v. Shaffer, 94 N. Y. 424; Williamsburgh Sav. Bank v. Town of Solon, 136 N. Y. 465-475, 32 N. E. 1058. It is necessary that it should affirmatively appear, either from the record itself, or from such other evidence as may be necessary to show the grounds upon which the action proceeded to final judgment, that the question alleged to be res judicata was not only in issue, but directly adjudicated upon. It must be removed from the questionable domain of uncertainty and doubt, and become so positive that it must be known what was passed upon by the court. Now, the defendants presented no evidence, aside from that furnished by the judgment roll, tending to show what questions were passed upon; and we must therefore examine it to see whether it establishes, as positively as the rule requires, that the question which plaintiff sought to establish in this action was passed upon in that. Looking first •at the minutes of'the court, we find that a jury was impaneled; that three witnesses were sworn in behalf of the plaintiff, and four were called by the defendant; and that the jury returned a verdict in favor of the defendant. Turning to the judgment, we read:
“The issues in this action having been tried before a jury, and a verdict having been rendered therein in favor of the defendant, it is ordered, adjudged, and decreed that judgment herein be, and the same is hereby, given for the defendant, and that the marriage between the plaintiff and defendant, in the pleadings mentioned, is a valid and lawful marriage.”
Thus it appears that the issues were tried, and what those issues-were quite clearly appears from the provision in the decree adjudging the marriage between the parties to be valid and lawful. The judgment roll furnishes other evidence touching the question tried- and decided. The judgment declares that the issues in the action were tried, and the pleadings determine what the issues were. Turning to the complaint, we find that the plaintiff alleges his marriage with the defendant; that they subsequently lived together aa
At the end of the copy of the judgment attached to the judgment roll were the following words: “A copy. Geo. W. Riblett, Clerk.” Through these words, by means of pen and ink, a line has been drawn. When and by whom, does not appear. " It is certainly not. •conceivable that the respondent, or any one in her behalf, could have been led to attempt the mutilation of a judgment roll, the validity of which was so important to her. But it was not necessary that the ■clerk should sign the copy of the judgment. He did sign the minutes of the court, and, on the rendering of the verdict, it was the ■clerk’s duty to enter judgment, which, after the expiration of four days became final. Code Proc. § 265. And the omission to sign the judgment roll did not affect the validity of the judgment, as it involved a mere question of practice and of regularity, (Van Alstyne v. Cook, 25 N. Y. 489;) and that which it was not necessary