Miller v. Miller.1

• Decision Date: 08 October 1895
• Citation: 92 Va. 196,23 S.E. 232
• Court: Virginia Supreme Court
• Parties: MILLER v. MILLER.1

23 S.E. 232

92 Va. 196

MILLER

v.MILLER.¹

Supreme Court of Appeals of Virginia.

Oct. 8, 1895.

Divorce—Res Judicata—Pleading—Alimony.

1. Where plaintiff sued for divorce, alleging cruelty, intemperance, and abandonment, and a decree was entered for defendant, and the plaintiff, not having lived with the defendant in the meantime, again sues for divorce on the same ground, the issue is res judicata.

2. If no mention is made of a demurrer in a decree disposing of the main issue, it will be considered overruled.

3. In a suit for divorce the allegation that the husband has been guilty of adultery on many occasions, is too general, and, although the name of the person with whom the defendant committed adultery need not be pleaded, the time, place, and circumstances should be set forth.

4. The allotment of alimony is within the discretion of the court.

Appeal from circuit court, Warren county; R. H. Turner, Judge.

Bill for divorce by Emma C. Miller against W. T. Miller. From a decree for defendant, plaintiff appeals. Affirmed.

O'FIaherty & Fulton, for appellant

John J. Williams, for appellee.

CARDWELL, J. Appellant and appellee intermarried March 7, 1888, and lived together in the county of Warren until November 19, 1888, when appellant left her husband's home, and returned to her father's, in the county of Page, where she has since remained. In March, 1889, she filed her bill of complaint in the circuit court of Warren county, praying a divorce from appellee a mensa et thoro, on the ground of cruelty, intemperance, and abandonment, and asking for alimony. At April rules of that year appellee demurred to and answered the bill fully, and in denial of all its charges. February 24, 1890, the cause was heard on the bill, answer, and general replication thereto, and the arguments of counsel, when the court dismissed the bill, there being no evidence sustaining the charges therein. In August, 1891, appellant filed her bill again in the circuit court of Page county, praying an absolute divorce from appellee, but, as this bill was dismissed at the April term, 1893, on a plea to the jurisdiction of the court, we need not notice it further. In May, 1893, she for the third time sued appellee for a divorce a vinculo matrimonii, upon the same grounds as in her second suit, and upon the same as in her first, except the additional charge of adultery. By the last bill filed, appellant, in addition to asking for an absolute divorce and alimony, prayed for and obtained an injunction against appellee's making sale or disposition of bis property until the further order of the court. February 26, 1894, the cause came on to be heard upon this third bill of complaint, defendant's answer thereto and joinder therein, and upon the plea of res adjudicata as set up in the answer of defendant, and supported by the record of the former suit between the same parties, disposed of by final decree therein entered at the February term, 1890, made an exhibit with the answer. Whereupon the court decided "that the relief prayed in the bill, upon all the grounds set forth therein, except that of adultery, is barred by the former suit upon the aforesaid plea of res adjudicata, and that the allegations of said bill as to its said ground of adultery are not sufficient in law"; and dismissed the bill, with costs against defendant, including a fee of $50 to complainant's counsel, and decreed alimony pendente lite to her of $150.

The first contention of appellant upon this appeal is that the plea of res adjudicata should not have been sustained, because un-certain, indefinite, and insufficient in law. The plea we think is sufficient. It related directly to the allegations of the bill in the...