McCullough v. Dashiell
6 S.E. 610
Va.
1888
Check Treatment
Lacy, J.,

delivered the opinion of the court.

*39This is the same controversy, between the same parties in interest, concerning the same subject-matter, which was deсided in this court on the 21st of February, 1884, and which is reported in full, with the opinion of this court and the decree rendered in accordance therewith, in 78 Va. 634, which was certified to the corporation court of Norfolk city on the 23d of May, 1884, when а decree was entered in the said corporation court in accordance with the decree of this сourt herein, and a special commissioner was appointed to sell the real estate, which was the subject of controversy in that suit, which was proceeded with so far as to advertise the same for sale on the 7th day of July, 1884. Whеreupon, the appellee, Mary E. O. Dashiell, a married woman, filed her bill praying an injunction to the said sale, and sеtting up the same defenses set up in the suit decided in this court February, 1884, above referred to, and the newly-discovered fаct that one payment of $500, for the purchase price of her land sold, had been paid directly to the aрpellant, who had misapplied the credit as set forth in the other suit of Charles Dashiell and wife against McCullough, and that thе same had not been converted by her husband to his own possession and then misapplied to the McCullough ‍​‌​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌‌‌​​‌​​​​‌​‌‌‌​‌​‌​‌‌​‌‌​​‌‌‍debt, as had bеen supposed by her, but had been paid directly to McCullough, who had misapplied the credit. And she also claimed thаt the debts were usurious, and claimed the right to make the defense now because she had had no day in court, and the learned judge of the corporation court, in an elaborate and able argument (which is presented in full to this court by the learned counsel for the appellee in lieu of his brief,) sustains these pretensions and perpetuates the injunction ; holding that a wife was entitled to bring such suit by her next friend, and that the former decree was no decree as tо her, (1) because there was no decision on these points in the former case, but, as they might have been if she was а party, the essential inquiry was whether Mrs. Dashiell was a party to the former suit, and bound by the proceedings therein. It is then set forth that the former suit was instituted by the husband alone, but that after its institution she was required, by decree *40in the cause rendered, to bе made a party plaintiff or defendant. That she sought to unite in the amended bill as co-plaintiff, suing by her next friend, but the lower сourt compelled her to sue as co-plaintiff with her husband and refused to allow her to sue by her next friend, and therefоre in such suit the wife was not bound by the proceedings; that it was the husband’s suit, and the wife was not bound; that a suit by husband and wife in right of the wife is a suit by the husband only, and the wife is not bound. Harrison v. Gibson, 23 Gratt. 212, and authorities cited. See also Blackwell v. Bragg, 78 Va. 535. This was the joint suit of the husband and wife to enjoin the creditor of the husband from enforcing a lien created by them both in the mode prescribed by the statute as to the property of married women. They were bоth parties, and when the wife sought to prosecute the suit on her part, by her next friend, her claim was rejected by the lower court, and she was compelled to proceed as co-plaintiff with her husband. From ‍​‌​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌‌‌​​‌​​​​‌​‌‌‌​‌​‌​‌‌​‌‌​​‌‌‍this she never appealed, but, if the question can be regarded as involved in that appeal, then, in either event, it was decided against her here, and her petition for a rehearing was rejected and denied. This decree is final as between the parties; is final as to the lower court; and is in •like manner final as to this court; and upon this appeal this court cannot rеview that decree, because it is final everywhere. Campbell v. Campbell, 22 Gratt. 672; Hill v. Woodward, 78 Va. 765; Stuart v. Preston, 80 Va. 625.

It is true that Mrs. Dashiell is a married woman, but she was a party to the suit, and judicial proceedings bind the parties to them, whether the parties are capable of binding themselves out оf court or not; whether they be insane persons, married women, or others under disabilities. Proceedings in court bind a marriеd woman when she is a party. If Mrs. Dashiell had any equities against her husband and sought to set them up, and was refused relief by the lowеr court, she was bound by that decree until it was reversed; and, if it was involved in the appeal, it was affirmed by the decree of this court unless reversed. Whatever grievances she may have in the premises, it is too late, when the *41case hаs been decided against her finally here, to bring a new suit by her next friend. The litigation is at an end, and, if any injustice has been done her in that suit, she nevertheless has exhausted her resources for redress in that suit, and her present suit cannot be entertаined for any purpose. It is unprofitable and a-vain thing to speculate in the lower court upon a question in this court which has been the subject of its consideration and final adjudication. Whether ‍​‌​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌‌‌​​‌​​​​‌​‌‌‌​‌​‌​‌‌​‌‌​​‌‌‍it is said to be harsh, admitted to be neverthеless not without authority, or declared to be altogether erroneous, it all amounts to nothing; and although this court may bе of opinion that it is only necessary to notice certain questions as they are decisive of the case, yet all questions involved in the appeal are finally adjudicated, whether distinctly raised and passed on below and hеre or not. If they are involved and might have been passed on, it is enough. Blackwell v. Bragg, supra; Campbell v. Campbell, supra; Adams v. Railroad Co., 76 Va. 913. The doctrine of res judicata applies to all matters which existed at thе time of giving the judgment or rendering the decree, and which the party had the opportunity of bringing before the court. Hopkins v. Lee, 6 Wheat. 109. As was said by Mr. Justice Clifford in Aurora City v. West, 7 Wall. 82-103, “courts of justice, in stating the rule, do not always employ the same language; but where every objection urged in the second suit was open to the party ‍​‌​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌‌‌​​‌​​​​‌​‌‌‌​‌​‌​‌‌​‌‌​​‌‌‍within the legitimate scope of the pleadings in the first suit, and might have been presented аt that trial, the matter must be considered as having passed in rem judicatam, and the former judgment in such case is conclusive between thе parties.” Lee v. Kingsbury, 13 Tex. 68; Supervisors v. Mineral Railroad Co., 24 Wis. 124. It is clear that the corporation court ought to have dismissed the bill of the plaintiff, and the decrees ‍​‌​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌‌‌​​‌​​​​‌​‌‌‌​‌​‌​‌‌​‌‌​​‌‌‍appealed from, which reopen these matters, are erroneous, and must be reversed and annulled.

Decrees reversed.