*1 152 v. SILVERMAN
SILVERMAN 2846 No. January 4, 1930. P. 593. *2 Appellant: Gardiner, Ayres &
.155 Platt, Respondent: Samuel
OPINION Sanders, J.: 1909, year and Jennie Silver- Morris Silverman
In the Cuyahoga Cleveland, city man intermarried Ohio, city marital domi- County, which was State together they during lived the time all cile of the year Morris Silverman In the man and wife. as Cuya- pleas, within and common in the court of filed state, from County, petition for divorce hoga his said Silverman, ground “extreme upon wife, his Jennie neglect “gross ground of cruelty” further charged a first substance, petition duty.” In his guilty of extreme that the cause of action marriage the wit, their that, since cruelty, ever *5 go temper, exhibited an uncontrollable would defendant rage, slap plaintiff, and otherwise assault into a would names, par- plaintiff and indecent and more call vile ticularly, July, 1925, rage the defendant flew into a store, dragged plaintiff bodily him and out of his called presence vile and obscene names of their children February, 1925, persons; that and other divers plain- a revolver and threatened to shoot drew tiff; plaintiff; threatened acid and to obtain blind marriage plaintiff that ever since their had in con- been bodily fear stant of his life and harm and that he was obliged night to lock his bedroom at for fear that carry injure defendant would out her threats to kill or him; constantly the defendant demanded that plaintiff leave their home under threat kill him or do bodily harm; day June, 1926, on 5th after city the defendant had returned from another and found plaintiff home, at their she kill him threatened to unless immediately, he pursuant left the home and that to said plaintiff obliged leave; threats that while age their children were of tender the defendant would plaintiff, home, curse and swear at in their in the and presence plaintiff of said children call vile and obscene names. action,
For a second cause of it was guilty “gross neglect duty,” defendant was in that on plaintiff occasions when the would come home late for dinner, his plaintiff, the defendant would refuse to serve plaintiff neglect, and when remonstrated her with for her the defendant would throw dishes and other utensils at him, plaintiff was forced to cook his own dinner and used; marriage wash the dishes so that ever since their plaintiff the defendant refused to make the bed of any would refuse to do duties for household whatsoever. petition alleged was the owner of an
undivided interest in the certain real estate situate city Cleveland, petition; described Wherefore, defendant had a dower interest therein. defendant; prayed that he divorced from the be marriage existing parties contract that the between and void and relieved there- declared null both be ; estate, real free from that he be awarded the described any defendant, clear and all claims of the dower from otherwise, and for such other and further relief as just equitable. may be deemed *6 response summons, the defendant answered the In to plaintiff the petition. admitted the residence of in She Cleveland, Ohio, city year for more than one of State of filing petition; plaintiff preceding of that and the his alleged peti- in were married the time the at marriage tion; children that two were born of said ages correctly peti- in whose names and were stated the plaintiff the owner of the tion. She admitted that premises petition, in described the but admitted no fur- every singular and ther. She each all denied and and allegations plaintiff’s and in the averments contained except specifically petition as admitted to be such were By way cross-petition and of true. for cause action of against residence; plaintiff, up the her the defendant set marriage parties; the the that children were born of two marriage, Saul, namely, as issue of their to them years age, years age. Ralph, and then 7 then alleged that she had at all conducted herself She times good wife, plaintiff towards the as and faithful but guilty gross neglect plaintiff that had been her, this, duty to wit: That for more than towards filing petition years preceding the his threé he himself from home almost divorce had absented following early every evening until of the hours neglected morning; he had the com- that refused defendant; panionship had refused and he neglected except meals on rare occa- to come home for years sions; infatu- three he had been for about alleged woman, name she would ated with another whose whose in due season be disclosed to court company company spent he more time than children; about defendant and their that ever since day June, plaintiff had 5th and defendant been separated by the defendant reason of the fact give plaintiff up that he demanded of woman he had become infatuated or else leave with whom defendant; response and that to said demand give up defendant rather than the chose other woman. was the owner She personal property $150,000, of real and of the value of years past, and that for about three last and since he woman, had become infatuated the other afore- with said, disposing estate had of his real been by property transferring persons the same to other by making per- investments in the names of other beyond place sons so as same the reach of the defend- beyond court, ant the reach of the the' event of filing petition alimony against of a the defendant for Wherefore, prayed plaintiff’s him. .petition it was dismissed; for divorce be that defendant be awarded alimony during pendency of the case and that on hearing thereof, permanent final she be awarded ali- mony support for the of herself and above-named children; custody two that she be awarded the of said *7 children; that she be awarded reasonable counsel fees to enable properly plaintiff’s her to defend the and claim prosecute cross-petition; plaintiff to her that the be required property to disclose the extent and value of his persons and the names of the to he whom had trans- it; ferred and for such other and as in further relief may equity plaintiff law and she be entitled. in his cross-petition answer to the defendant’s denied and each every allegation therein, specifically contained not admit- prayed ted. cross-petition He that the defendant’s be judgment dismissed for petition. and in demanded his Subsequently, the defendant filed in said and court cause supplemental cross-petition and, a with leave of court, Lydia Woldman, made Woldman and A. Albert wife, Borstein, husband and and one Rose defendants action, in against the and for cause of them action plaintiff that the real was owner of certain (described), prior estate long and a fil- for time to the ing during of his action for all time divorce and of said he secreting had property, personal, been real and both beyond purpose placing the same the reach
for the court, knowing file that defendant would well cross-petition alimony, for and that furtherance years design, plaintiff 1925 and 1926 of said conveyed to the defend- caused certain real estate be to by warranty deed, Lydia ant con- Woldman without estate, sideration; plaintiff real owned other thereto for he took title but that the reasons aforesaid Borstein, in the name of defendant Bose who had equitable property and no interest who held enabling purpose his same for the to conceal beyond ownership place property to such thereof and event of for reach court might alimony which the court render this action. against Wherefore, injunctive prayed relief said she for reconvey defendants; they prem- be ordered to subjected the same be ises and that may action; any alimony be made order for justice equity the and such relief as in and other might just proper. Lydia A. Albert court deem answer, joint and Bose Borstein Woldman filed their made, separate Upon the cause filed answer. issues her 5, 1927, upon the came to be heard on November on counsel, evidence, arguments pleadings, and the common thereof said court of consideration defendant, found, among things, pleas other “gross neglect Silverman, guilty was not Jennie duty” cruelty,” plaintiff’s as set forth in and “extreme petition, and not entitled to a divorce. was defendant, prayer and that Jennie His for divorce right plaintiff’s Silverman, her of dower in be barred of denied, plaintiff’s petition property for divorce was It recited in the decree that: was dismissed. now, cross-petition “Coming, to consider *8 defendant, supplemental cross-petition Jennie of allegations Silverman, finds of said the court ' true; plaintiff has cross-petition been are “gross neglect duty” the defend- guilty of towards of ant, Silverman, ali- is entitled to Jennie that she child, mony support said minor for the of herself and Ralph plain- The court further found that Silverman.” an tiff was the owner of undivided one-third interest city Cleveland, in certain real estate situate in the of decree; adjudged, ordered, described it was Lydia decreed that the defendants and her Woldman husband, Woldman, convey by good A. Albert and suffi- plaintiff premises. cient deed to the said It was further plaintiff pay ordered that to the defendant the sum of per month installments of each on the 1st $150 $75 day and 15th of each month until the further order of court; support said sum to be for the of herself and child, Ralph for said minor Silverman. It was further pay expenses ordered that the keeping of college their son Saul until the further order of the It court. was further ordered that the defendant have custody Silverman, Ralph of the child plain- but that right tiff shall have the to see him at all reasonable times. It was further ordered that the defendant have lien a on all the real estate security payment any for the and all pro- of the installments decree, vided for in the and it was further ordered that plaintiff pay attorneys to the defendant’s the sum of and the further sum $350 to reimburse them $102 stenographic services, for including taking depo- sitions in the action.
Thereafter, petition filed his in error in said pleas court of common for reversal of the decree of plaintiff’s petition dismissal of granting and the prayed relief cross-petition. in the defendant’s Thereafter, Ohio, Morris Silverman left the state of August 28, 1927, Reno, County, on came to Washoe Nevada, period where he resided for a of three months. 29, 1927, judicial On November he filed the Second district court of the State of Nevada in and for the county Washoe, complaint against a Jennie Silverman substance, complaint alleged In divorce. city Reno, was a resident of the Washoe County, Nevada, physically corpo- and had been really present city, county, each said and state within every day wit, period time, for said three *9 marriage complaint up the the The set
months. city Cleveland, Ohio, day on the 6th parties in the 1909, alleged February, minor sons and that two marriage, wit, Ralph their to Saul and were born of complaint “That as follows: Silverman. defendant, willfully against and the and con- said will plaintiff, plaintiff, and deserted and abandoned sent of immediately year past than one last and con- for more herein, filing complaint tinuously preceding the plaintiff, against desert and abandon and continued to marriage and consent. That ever since said his will began and continued of and towards defendant plaintiff extreme cruel and inhuman treat- a course of which, unremittingly ment, the time the all continued ultimately together parties forced the and which lived parties, plaintiff leave the house and home of the to defendant, to cease further to live with to leave the and her.”
Following general allegations, complaint these July, 1925, gave charged: defendant vent That in rage dragged temper a to an unusual outburst store, plaintiff called him vile and out of a obscene parties presence of the children names February, the defendant persons; that other plain- threatened shoot drew a revolver and tiff; upon the. defendant threat- that other occasions plaintiff, ened acid and blind the and that for to-obtain eight months, period than in order to free of more be temper the threats and outbursts of and assaults from defendant, keep had the doors of his locked; again literally time and defendant room house, him out of the and because of defendant’s chased plaintiff had in constant threats and actual assaults been May 5, 1926, life; after the defend- fear of his on city plain- found the ant had returned from another parties, defendant tiff and home of the at house plaintiff unless he left the home threatened to kill the immediately; following threat said parties left the did leave the house and home of her; defendant and has never since lived with employed detectives to follow the repeatedly having accused him of illicit relations women; with other because of the acts of extreme cruelty plaintiff, inflicted the defendant he ultimately driven from the house and home living and driven from further with or cohabi- tating defendant; with the things that all said acts and *10 alleged complaint in the occurred for more than one year immediately preceding filing complaint, the willfully and that premeditatedly said acts were and by against committed the plaintiff’s defendant the will consent; and acts, singly and that each and all of said entirety, and in their plain- made the married life of the tiff unendurable, unbearable and forced the to leave the defendant and abandon further marital rela- her, tions and associations with and constituted a willful plaintiff upon part desertion of the the of the defendant plaintiff’s and without consent period for a continuous year of more than one immediately continuously and past. last Wherefore, plaintiff prayed a decree dissolving the matrimony existing bonds of between the parties permitted and that each be to resume the status persons. of unmarried
The appeared defendant and a filed demurrer to the plaintiff’s complaint upon ground it did not state facts action, sufficient to constitute a cause of Thereafter, which was January 23, 1928, overruled. on defendant, Silverman, Jennie filed her answer complaint which she denied that was a County. bona fide resident of Washoe She admitted marriage thereof, and that two sons were born but every allegation denied each and contained the com- plaint charging cruelty her with and marital misconduct. answering complaint Further separate para- and in graphs, up pleadings defendant sets and the pleas decree of the court of common within and for Cuyahoga County, Ohio, State of and that said adjudication decree was a final and determination said cause in prayed judgment the State of Ohio. She on adjudged the merits and that it be and decreed that parties this case had been
the issues between adjudicated by pleas of common and said court judgment binding court and that the relief said pleas, given by it of common so far as relates said court custody parties sup- the children of and the children, port and of the defendant and said be affirmed given in this case to the same extent be pleas as in of common the amount said court separate same maintenance to the extent for as of common amount said court same ordered general pleas proper for and to all further and orders relief. reply to the answer and
Plaintiff filed his defendant’s put “cross-complaint,” In he so called. his answer respect upon proof pro- to and with to the ceedings the court of common and the decree entered in Cuyahoga County, Ohio, pleas within and State complaint. prayed for the relief demanded his jury. After a full hear- case was tried without evidence, ing pleadings the court made upon the findings intermar- fact to the effect that *11 9, 1909; they February residents of ried on that were they Cleveland, Ohio, during city the time lived the all of together wife; plaintiff man that at the time the resident the this action was a of of commencement of Nevada, Washoe, city Reno, county of of State the of suit; prior of period three to the date for the of months charges allegations singular con- that all and the true; plaintiff’s complaint the were that tained in the jurisdiction the competent over was one of Ohio court allegations subject parties; that matter defense, affirmative in the defendant’s first contained respecting proceedings the decree of court County, Cuyahoga pleas common for State of within and Ohio, true; the averment contained were that defense, to effect that defendant’s second affirmative therein plaintiff as his cause action court Ohio present alleged alleged in the those facts identical with allegations true; complaint, contained was not defense, respecting affirmative defendant’s third upon the Ohio decree favor of the wife peti- her cross alimony, true; tion for were not the defendant’s specially and third pleaded by second were not defenses way bar, recrimination, estoppel, judicata; or res ad the defendant’s defenses were not estab- Upon findings lished. these of fact and the conclusions therefrom, adjudged, of law ordered, adduced it was decreed that be divorced from the defend- ant pay and that the to the defendant the sum month, per each, in installments $150 for the $75 support Ralph of herself and their son Silverman until court; further order of the that the defendant have custody right of said son with the to visit him at all reasonable times until the further order of court; plaintiff pay expenses of their son college Saul Silverman in until the further order of the court. The trial, defendant filed a motion for new denied; which thereupon, perfected she appeal her judgment from the and from said order. shall
We refer to the in both courts as the wife, respectively. husband and the We shall refer to pleas the common Cuyahoga County court within and for court, as the Ohio and to the court below as the Nevada court. prolix
A litiga- statement has been made of the Ohio bring tion in prominence question order to into its litigation. extraterritorial effect the Nevada
Counsel for the husband insists that the Ohio decree was not conclusive in Nevada as to the issue of the “constructive desertion” the wife of the husband Ohio, following reasons: properly pleaded,
First. That the Ohio decree was not defense, estoppel, adjudicata. either as a an a bar or res This contention is untenable. It is manifest from her pleadings sought rely upon the wife the Ohio legalizing separation her from her husband *12 awarding separate and support her maintenance for the children, denying of herself and to the husband a upon ground cruelty divorce as a defense. The proceedings upon record in discloses that the trial 166 litigation duly certified were identified and
the Ohio
evidence,
the trial court found the
in
and that
admitted
We are
in
wife’s answer.
record to be as
opinion
decree
suffi
the Ohio
therefore of
Gulling
ciently
v.
pleaded
Washoe
and considered.
Doug
25; Douglas
Bank,
257,
v.
County
89 P.
29 Nev.
Kelly,
359; Kelly
las,
655,
(2d)
v.
4
156 Tenn.
S. W.
376,
118
It contended on behalf is final, not hence place Ohio decree was ond application. adjudicata has-no estoppel or res doctrine judgment was ren- that, after the The record discloses against in the husband and court in the dered Ohio separate cross-petition for upon her the wife favor of petition in error maintenance, filed his the husband Code, 12259, to review provided General sec. in Ohio against the husband judgment rendered and reverse the peti- in that a It is Ohio in held favor of wife. Code, 12259, ais General in section tion error under error, proceeding in separate independent essen- statutory appeal, a tially and is not a different from original transplanting action continuation clearly reviewing is The distinction court. statutory proceeding in and a error drawn between Levering Bank, 87 appeal National in the case of v. 611, 117, 322, (N. S.) R. A. N. 43 L. Ohio St. E. Rogers Hatch, 35, 1913e, Ann. In Nev. Cas. 917. v. substance, held, original appeal it if is is error, the nature of' a writ it not does vacate or sus- pend judgment appealed accordingly from. It was that, held case prac- Ohio cited under laws state, petition tice of impair in error not does the effect of the as a final determination of rights litigation. in the Ohio argument It is insisted on behalf of the husband right rely upon the wife waived her Ohio defending decree the merits. This contention 317, Harding Harding, is also untenable. v. 198 U. S. 1066; Kelly Kelly, supra. 25 S. Ct. 49 L. Ed. v.
It also is insisted on behalf of husband in the
167
place
in
fourth
the issues
the Ohio case and the
identical,
point
Nevada case are not
neither
in
of time
plea
judicata,
or facts.
'Hence the defense or
of res ad
attempted
by
litigation,
to be established
the Ohio
has
application
no
to the husband’s
cause
action
of
for
upon
ground
in
divorce
Nevada
of “constructive
support
contention,
desertion.”
In
of this
counsel for
rely solely
husband seem to
the case of Sweet
Sweet,
254,
v.
49 Nev.
The conclusive answer to this contention is that in Sweet present foreign v. Sweet there was not decree adjudging separation the wife’s from her husband with- part, out fault on her and therefore was not a willful by wife, desertion of the husband pre- which is the cise issue in the husband’s action for divorce in Nevada. clearly opinion We are of the presented the issue in this action for divorce was identical was that decided in litigation separate Ohio maintenance because gross of the neglect duty, husband’s which neces- sarily involved the question determination whether guilty or not the wife was of desertion as charged complaint in the in the Nevada court. Vickers,
In 274, Vickers 76, v. 45 Nev. 199 P. P. opinion, Justice the writer of the Coleman, Harding Harding, reviews the cases supra, v.
Kelly Kelly, supra, v. which hold that where the wife separated from the husband and obtained a competent jurisdiction in a subject court of over the parties, matter and of the she had left her husband justifiable cause, for a thereafter another state brought ground the husband suit for divorce on the desertion, give willful it was error him to a decree as prayed, deny since that would full faith and credit the court of the first state. distinguished at principle case bar cannot be Harding Kelly Harding Kelly.
from the cases v. v. manifest, court, proceedings It is from the in the Ohio desertion, presented the issue of willful in the case bar, at separa- is identical with the issue of the wife’s fault, presented tion from her husband in her without suit, cross-petition upon her maintenance hus- ground upon the “intolerable for divorce band’s action court, legal effect, cruelty.” The decree of the Ohio separation from the established that wife lawful, conclusively operated and therefore husband was separation constituting prevent from a will- the same charged ful of the husband desertion wife case, complaint being This it this action. *14 court, granting in husband Nevada the follows that the ground desertion” a divorce the of “constructive the give the court due failed to decree of Ohio entitled, thereby to which it was faith and credit the United Hard- violated the Constitution of States. ing Harding, supra. v. appealed therefore be
The from must reversed, further such and the cause remanded for proceedings parties may be as advised.
It is so ordered. J.:
Coleman, allegations defendant, denying in addition to plead, alleged complaint, in undertook to of desertion adjudication. defense, It is former as an affirmative pleaded argued strenuously defense was that no such “First, affirma- so-called defendant: because and, facts, sec- plea plead essential not certain tive does ondly, plea not that the same does show because suit, as is cause of action was involved in Ohio said, one, that, the cause of action involved in this as brought by was founded in the suit Ohio duty,” cruelty” “gross neglect of on “extreme present plaintiff’s is founded on “willful whereas suit desertion.” (1) That the
The affirmative defense shows: July, 1926, in the court of common commenced a suit County, Ohio, Cuyahoga a pleas to obtain for defendant; (2) that said court was at divorce from general suit court of the time the institution of said a seal, jurisdiction state, having a clerk with said divorce; (3) jurisdiction in causes that alleged his of action in suit cause said facts identical ; complaint in the instant with those suit process (4) the defendant was served with said September 1926; (5) suit on the defendant appeared cross-petition, therein and filed her answer and every allegation wherein she denied each and contained plaintiff charging petition in said her marital with offenses; (6) regu- thereafter cause came on said larly 5, 1927, for trial on November and that thereafter 15, 1927, judg- and on the said court rendered December against plaintiff defendant, ment and in favor of the every wherein it was determined that each and allegations plaintiff’s petition charging the defend- delinquencies untrue; (7) ant with marital were adjudication said decree is a final and determination of said suit. think cross-complaint
We
the answer and
pleaded
necessary
all that
is
to constitute
plea
adjudicata.
of res
Despondent
position
seems
to take
because of certain
prayer
matter contained in the
defendant’s answer the affirmative defense should not
*15
be considered as sufficient.
have often
We
held that
prayer
way
can
sufficiency
in no
affect the
of the
pleaded;
furthermore,
goes
matter
the matter
merits,
Kelly
defense
proper.
Kelly,
on the
which is
v.
376,
118 Va.
The writer is unable to with the contention respondent of that a different “cause of action” is adjudicated in the instant case from that involved court, merely the Ohio because the suit in the Ohio cruelty” “gross court was based on “extreme neglect duty,” of whereas this is suit founded on “will ful desertion.” identity
The true test of the “causes of action,” as term is used in connection with the identity plea adjudication, is the former facts identity essential to their maintenance. The may appear causes of action from evidence in the two pleadings. cases as well from the 170 agree the same evi that when
The authorities present cause and the former supports both dence action, of action are identical. This the two causes early English Kitchen expressed case of view was saying: 304, “You (1772), 3 the court Campbell Wils. v. bring final cause action twice to a the same not shall vexari, upon determination; this we debet bis nemo by judgment: is meant the same and what found our support is the same evidence will cause action when although may happen actions, to be the actions both writs; grounded this is the test to know on different action is a a final determination a former whether through subsequent action; and it runs not to a bar or books, personal in real and all the cases both actions.” long support cited in of this view
A list of cases is Ency. 805, See, also, p. 15 note 14. Stand. J.C. p. Proc. 504. by one cannot
It is well-established rule that escape operation varying the form of an action principle action that one and the same cause of adjudicated upon the merits shall not be twice between Judgments, privies. the same or their 2 Black on 729; sec. C. J. sec. 1289. and order are reversed. expressed I C. J.: concur the views
Ducker, Justice Coleman.