Baily v. Baily

• Decision Date: 16 February 1863
• Citation: 44 Pa. 274
• Court: Pennsylvania Supreme Court
• Parties: Baily <I>versus</I> Baily.

44 Pa. 274

Baily versus Baily.

Supreme Court of Pennsylvania.

February 16, 1863.

APPEAL from the Common Pleas of Chester county.

Brinton and D. P. Brown, for appellant.

W. Townsend and William Darlington, for appellee.

The opinion of the court was delivered, February 16th 1863, by THOMPSON, J.

When this case came on for argument in this court, the appellee was allowed to plead, in bar of the errors assigned, the record of a judgment in replevin, recovered by arbitration by the appellant, Mrs. Baily, against John P. Baily, her former husband, since the decree of divorce, for the purpose of estopping her from reversing that judgment; that being the foundation of her right to sue in her own name for the recovery of property in the possession of her former husband. To this plea the appellant's counsel demurred generally, and thus is presented the question of the effect of this assertion of a right under the decree, and a recovery of judgment in consequence thereof, upon the attempt now to invalidate it on the ground of supposed irregularities.

The decree in divorce now appealed from by Mrs. Baily, was made by the court below on the 30th November 1861, upon the petition or libel of her husband, filed on the 13th July 1861, charging wilful and malicious desertion and absence of his wife from the 12th of August 1851, until the filing of the libel. There was a personal service of the subpœna on the wife, but she made no resistance to a decree of dissolution of the bonds of matrimony. Afterwards, on the 2d of July 1862, Mrs. Baily caused suit to be brought for the recovery of certain articles of personal property, which she claimed in the narr. as her own, in the possession of John P. Baily. On the 5th of November 1862, she obtained an award of arbitrators in her favour of $125, which is in full force and unappealed from, and in which, after the award filed, she also filed her bill of costs.

This is the substance of the special plea of the appellee, and it is admitted by the demurrer on part of the appellant, but the legal effect denied.

It is not an estoppel by matter of record, because, although between the same parties, it does not arise in the same case; yet undoubtedly this case gave vitality to that, as that could not have been maintained but for the decree in this. How are we then to consider it? Are we to allow the solemn assertion of a party made in a judicial proceeding, when the matter asserted is for the interest of that party, and when the object in making it has been accomplished, turn around and assert its non-existence in another case with the same party, and by that means bind him to a position which he otherwise could have got rid of by pursuing his legal remedies? This would be manifest injustice, and contrary to every principle of law. The retraction of the assertion of the divorce, which was undoubtedly made, and which the law would presume to have been made, in the replevin suit brought and pressed to judgment by Mrs. Baily, in the form it was, and resulting as it did, would be an undoubted wrong against the appellee. The appellant asserted her divorce, and the appellee did not, and could not, deny it, and hence he stood towards his former wife as a stranger, and fought his legal battle on that ground, and so did she; but after he is defeated, and time has ripened the award into an absolute judgment, she seeks to annul the very ground of her right to recover as an unmarried...