Bass v. Ervin

• Decision Date: 16 November 1936
• Docket Number: 32392
• Citation: 170 So. 673,177 Miss. 46
• Court: Mississippi Supreme Court
• Parties: BASS v. ERVIN

170 So. 673

177 Miss. 46

BASS v. ERVIN

No. 32392

Supreme Court of Mississippi

November 16, 1936

Division A

1 BASTARDS.

Decree of annulment on ground of coercion in inducing marriage would not render child born during wedlock illegitimate, where putative father of child had married mother during her pregnancy with knowledge thereof and child was born thereafter, since status of legitimacy continues once acquired.

2 BASTARDS.

Presumptively father of child born during marriage if liable for its support after annulment of marriage on ground of coercion, and mother is secondarily liable.

3. MARRIAGE.

Failure of mother to petition for support of child in annulment proceedings held not to exonerate father from, responsibility for support of child, where annulment was granted and child was held legitimate, as against contention that decree in annulment proceedings was res judicata.

HON. D. M. RUSSELL, Chancellor.

APPEAL from chancery court of Harrison county, HON. D. M. RUSSELL, Chancellor.

Suit by Betty Bass against John Edward Ervin. From an adverse decree, the plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Jo Drake Arrington, of Gulfport, for appellant.

The annulment suit and the decree rendered therein which is relied on by the appellee and invoked as res adjudicata of the case at bar, involved the sole issue of whether or not the appellee (who was complainant in the annulment suit) was coerced into the marriage with the appellant (who was the defendant in the annulment suit). The pleadings in the annulment suit were made Exhibits "A" to "F" to the appellee's plea of res adjudicata. They will be searched in vain for any other issue. The final decree annulling the marriage as having been obtained by coercion, or duress, does not mention the child of the parties, of the marriage.

Before the plea of res adjudicata can prevail, four things must be shown: (1) Identity in the thing sued for; (2) Identity in the cause of action; (3) Identity of persons and parties to the action; and (4) Identity of the quality in the person for or against whom the claim is made.

Creegan v. Hyman, 93 Miss. 493, 46 So. 954; Jones v. George, 126 Miss. 576, 89 So. 231; True-Hixon Lbr. Co. v. Thorn, 158 So. 909; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73.

A plea setting up res adjudicata must distinctly aver that the particular issue in question was adjudicated in the former suit; general language or inference is insufficient.

Jones v. Brandon, 60 Miss. 562.

The appellee's plea of course could not pretend that the particular issue in this case--that of the father's liability for the support of his child--was adjudicated in the annulment suit.

The Supreme Court has held time and again that the father's duty to support his child is a continuing duty, even after the father and mother have cased to sustain the relation to each other of husband and wife, as in the case at bar.

Lee v. Lee, 135 Miss. 865, 101 So. 345; Schneider v. Schneider, 155 Miss. 621, 125 So. 91; Watts v. Smylie, 116 Miss. 12, 76 So. 684.

In holding that the father's duty to support his child is a continuing one, our court has aligned itself with the vast majority of jurisdictions, which maintain the rule that even a decree of absolute divorce in which no provision is made for the support of his children, does not release the father from his duty to support them.

Gully v. Gully, 231 S.W. 97, 15 A.L.R. 564; Amis' Divorce and Separation in Mississippi, sections 30, 231-238.

The fact that the marriage in this case was annulled, whereas in most of the cases cited above it was dissolved by a decree of absolute divorcement, is irrelevant to the issue. The appellee's duty to support his child, or to reimburse the appellant for necessary expenditures made in its support, is his common law duty.

The marriage was only voidable; the child was a legitimate child of the appellee.

Ervin v. Bass, 172 Miss. 332, 160 So. 568; Ellis v. Ellis, 152 Miss. 836, 119 So. 304.

The child in the case at bar is legitimate as a matter of law.

Parkinson v. Mills, 159 So. 951, 172 Miss. 784.

In Russell v. Russell, 154 So. 881, it was held that a previous allowance to a wife in a divorce action was not res adjudicata in a subsequent suit by the wife to recover expenses incurred by her during a serious and protracted illness of their child.

T. J. White and C. B. Adam, both of Gulfport, for appellee.

It is our contention that any relief sought by the appellant herein must of necessity be based upon a valid marriage. The decree which was rendered on July 1, 1933, after a full hearing in the matter, up to this time, stares the appellant in the face; which decree was a solemn decree of the chancery court, rendered at a time when the appellant and appellee herein, were properly before the court, the issues were clearly joined and presented, and the court found as a matter of fact and law that there had only been a pretended marriage between the parties, and that it was, and has always been, null and void.

Where a court has jurisdiction of the subject-matter and the parties in interest, its judgment is not alone res adjudicata of the questions specifically presented by the pleadings, but is also res adjudicata of all questions necessarily involved and which could have been presented.

Bates v. Strickland, 103 So. 432; Dean v. Bd. of Supervisors 135 Miss. 268, 99 So. 563; Vinson v. Colonial and U. S. Mortgage, 116 Miss. 59, 76 So. 827; Harrison v. Turner, 116 Miss. 550, 77 So. 528.

It is not our contention herein that it is not the father's duty to support his child, it is our contention that it is not the appellee's duty to support some other man's child. The various cases cited by counsel herein, where the court held it was the father's duty to support his child, are all based upon suits filed, wherein there was a valid wedding involved, a legitimate child, or children, and a valid decree of divorce.

If the case of Ervin v. Bass, 172 Miss. 332, 160 So. 568, is to be depended upon, then it settles the issue here, for in that case this honorable court said the decree of annulment should have made proper provision for the support and maintenance of the child, and doubtless would have done so, had the mother in response to the suit for annulment, properly presented that question to the court and that "she could not omit to do so, and afterwards institute a proceeding in bastardy."

And the court might have added that she could not omit to do so, and failing to appeal from a decision of the chancery court, adjudicating as a matter of fact and law, that her pretended marriage was null and void, and never in fact had any existence, and then, more than two years later come back into the same court and base her cause of action upon the validity of a marriage that had been set aside, cancelled and held to be null and void.

There are statements about the presumptions of legitimacy of the child in the case of Ervin v. Bass, but presumptions fade and give way where positive proof is introduced.

Her only right to proceed in this court must be based upon the validity of her said marriage, and must be based upon positive proof of the appellee being the father of said child. These matters were a part of the annulment proceeding and should have. been presented at that time.

Argued orally by Jo Drake Arrington, for appellant, and by T. J. White, for appellee.

OPINION

McGowen, J.

Appellant Betty Bass, exhibited her amended bill against the appellee, John Edward Ervin, by which she sought to recover from the appellee support, and physicians' bills incurred and expended by her, for the maintenance of their minor child, Fred Edward Ervin. The bill alleged that the child was born on the fifth day of April, 1933, while appellant and appellee were legally married and in law husband and wife, and that the child had been in the custody of its mother since its birth. It was further alleged that the marriage was annulled on July 1, 1933, and that since the birth of the child appellant had made certain arrangements with her parents for the support of the child, and had made payments on that contract,...