Rose v. JacobsRose v. Jacobs
Willie B. Rose and wife, Vera Rose, held title to property at 3216 Arch Street, Little Rock, as an estate by the entirety. In 1943, Willie left and went to California. On December 8, 1949, Vera obtained a divorce in the Pulaski Chancery Court. The decree recites that “the defendant comes not in person but files herein a letter through his attorney, John D. Drake, 721 W. McArthur Blvd., Oakland 9, Calif.”,
We are of the opinion that this litigation is controlled by the rule of res judicata; i.e., we hold that appellant’s rights in and to this property were adjudicated by the order of the Chancery Court on August 2, 1957; it therefore becomes unnecessary to discuss other points which have been raised.
Appellant contends that this prior order is not res judicata for two reasons. First, because the original decree in 1949 was void insofar as it dissolved the estate by the entirety, and second, the defendants in the 1957 motions were not the same defendants as in the present litigation. We first consider the second point. The 1957 defendants were Zenobia Glaseo Jacobs, also a defendant in the present action, and her brother, Cleopas Glaseo. In the instant case, Glaseo is not a defendant, but instead, Willie S. Jacobs, husband of Zenobia, was made a party. While the record does not disclose the reason for making Willie Jacobs a party, it was evidently based on the fact that he was living on the property with his wife. There is no intimation that Jacobs has any rights, other than through his wife, but at any rate, this is not a defense available to appellant. Had Rose been successful in 1957, and it developed that Jacobs had an interest in the property apart from any interest claimed by his wife, then Jacobs, in the present action, might well contend that he was not barred by the 1957 decree since he was not made a party at that time. But appellant had his day in Court. The issue before the
“Since the identity of parties is not a mere matter of form, but of substance, the rule of res judicata should not be defeated by minor differences of parties. Thus, where the issues in separate suits are the same, the' fact that the parties are not precisely identical is not necessarily fatal to the conclusive effect of the prior judgment, and a substantial identity is sufficient. * * * This rule, that there must be a substantial identity of parties as well as of the subject matter, is based on the fundamental principle that no man can be deprived of his property except by due process of law, a principle which in the United States has been embodied in the Federal Constitution and in the constitutions of the several states. It has also been held that the true reason for holding an issue res judicata is not necessarily the identity or privity of the parties, but the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, and that a plaintiff loho deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issues, even though defendant in the second suit was not a party, nor in privity with a party, in the first suit.” 1
More vigorously, appellant contends that the order of the court on December 8, 1949, in the original divorce decree, dissolving the estate by the entirety, and vesting the title absolutely in Yera, was a complete nullity; that since the decree of dissolution was completely void, no subsequent proceedings in the court were of any effect; in other words, that all proceedings founded on a void judgment are a nullity.
It is not necessary for us to pass on the validity of the original order of dissolution (though there is some indication that appellant may have entered his appearance), for we do not agree with appellant’s assertion that all subsequent proceedings were void. Even if the 1949 decree was void, the defense of res judicata was properly raised by virtue of the 1957 proceeding. These motions to modify the 1949 decree were heard by the court, and its decree rendered. In Restatement of the Law of Judgments, § 13, page 73, we find:
“Where an action is brought upon a judgment in a court having jurisdiction over the parties and a judgment is rendered for the plaintiff, the second judgment is not open to collateral attack on the ground that the original judgment was void.”
Under the comment, it is further stated:
“Where a court renders judgment against a defendant over whom it has no jurisdiction, and the plaintiff thereafter brings an action upon the judgment in the same State or in another State and the defendant appears in the action and sets up the invalidity of the prior judgment as a defense, and the court erroneously holds that the prior judgment was valid and gives judgment for the plaintiff, this judgment is not void and is not open to collateral attack. Where the court in the second action has jurisdiction to render a judgment, the judgment is not subject to collateral attack even if it is erroneous on the law or the facts. The decision of the court makes the matter res judicata.”
Finding no error, the judgment is affirmed.
Notes
Emphasis supplied.