Bowman v. Bowman

• Decision Date: 06 September 1938
• Docket Number: 2072
• Citation: 82 P.2d 357,53 Wyo. 298
• Parties: BOWMAN v. BOWMAN
• Court: Wyoming Supreme Court

82 P.2d 357

53 Wyo. 298

BOWMAN v. BOWMAN

No. 2072

Supreme Court of Wyoming

September 6, 1938

APPEAL from the District Court, Sheridan County; V. J. TIDBALL Judge.

Affirmed.

For the plaintiff and appellant, the cause was submitted on the brief of G. A. Layman and R. G. Diefenderfer of Sheridan.

The defense in this action was that a prior divorce action between the same parties had established a prior adjudication. After a consideration of the case on briefs the trial court on November 1, 1937, rendered judgment in favor of defendant. Appellant contends that said judgment was erroneous, for the reason that there was insufficient proof of a judgment in the former case and no evidence whatsoever that said alleged judgment had ever been entered as required by law. Section 89-1212-14, R. S. 1931. All judgments and orders must be entered on the journal of the court. Section 89-4902, R. S. 1931; Hahn v. Bank, 25 Wyo. 467 Goodrich v. Bank, 26 Wyo. 42; State v. Scott, 257 P. 699; Coe v. Erb, 52 N.E. 640; Sievertsen v. Chemical Company (Iowa) 133 N.W. 744; Bouquot v. Awad, 153 P. 1104. If this court should deem the proof of a former judgment sufficient, we direct attention to the fact that it was merely one of dismissal for insufficiency of evidence and was not on the merits, so as to constitute res judicata. 19 C. J. 177; Bank v. Dunn (N. M.) 70 P. 760; 34 C. J. 781; Gummer v. Omro, 6 N.W. 885. A judgment of dismissal and not on the merits is without effect. Mulhern v. Company, 2 Wyo. 465; 28 Wyo. 196; 31 Wyo. 63; 36 Wyo. 458; 37 Wyo. 293; Clark v. Scovill, 91 N.E. 800; Braby v. Rieban, 179 P. 383; Lehigh Valley R. R. Co. v. Quereau, 289 F. 767. Andrews v. Ottel Tail, Etc. (Minn.) 27 N.W. 303; Association v. Caine, 77 N.E. 557; Walton v. Mays, 194 P. 354; Swift v. McPherson, 232 U.S. 51; Prall v. Prall, 26 L. R. A. (N. S.) 577.

For the defendant and respondent, the cause was submitted on the brief of Maurice L. Cone of Sheridan.

The judgment in the former case was in evidence and appellant is precluded from raising objections as to its admissibility on appeal. 64 C. J. 239; Weidenhoft v. Primm, 16 Wyo. 359; 64 C. J. 112, 115. It was stipulated between the parties at the trial that the files in the former action and the judgment entered on October 28, 1936, were genuine. Respondent cannot now urge points in conflict with that stipulation. 60 C. J. 85. The case of Hahn v. Citizens Bank, cited by appellant, differs on the facts as does also the case of Goodrich v. Big Horn County Bank and State v. Scott. In fact all of the cases cited by appellant were based on facts differing from the case at bar. We contend that the judgment in the former case was a final determination of the merits between the same parties and upon the same issues, and as such constitutes the subject matter of this action res judicata. Mann v. Mann, 97 S.E. 175; Cook v. Elmore, 27 Wyo. 163; 34 C. J. 805; Hanks v. Hanks, 27 Wyo. 65, 19 C. J. 177; Wagoner v. Wagoner (Md.) 25 A. 338; Bartlett v. Bartlett, 18 Am. R. 493. A dismissal in advance of trial is not conclusive, but where both parties have introduced testimony or had an opportunity to do so, and the court upon consideration thereof, dismisses the action, it is not a mere non-suit, but a judgment on the merits and a bar to any further suit on the same cause of action. 34 C. J. 788; Jones v. Wetlin, 39 Wyo. 345; Hennessy v. C. B. & Q. Ry. Co., 24 Wyo. 305.

RINER, Justice. KIMBALL, J., and THOMPSON, D. J., concur.

OPINION

RINER, Justice.

The proceedings by direct appeal in this case undertake to bring here for review a judgment of the district court of Sheridan County denying the appellant as plaintiff in that court a divorce from the respondent, the defendant there, adjudging that the defendant "go hence without day," and for costs. The judgment in question found for the defendant against the plaintiff and also that on "October 23, 1935, in an action then pending in this Court in which the plaintiff herein was plaintiff and defendant herein was defendant, said cause being tried by the Honorable Harry P. Ilsley, District Judge, for the same cause of action set forth in plaintiff's petition in this action, the defendant herein, to wit: Elfie A. B. Bowman, recovered judgment on the merits thereof in her favor and against the plaintiff herein, which said judgment constituted and now constitutes a bar to plaintiff's action for any cause accruing prior to said date, to wit: October 23, 1935.

"The Court further finds that the defendant has not been guilty of extreme cruelty toward the plaintiff in the manner alleged in plaintiff's petition or otherwise since October 23, 1935."

It does not seem to be contended by appellant that the trial court was mistaken in making the finding contained in the paragraph last above quoted from the judgment attacked. Indeed, our examination of the evidence in the case convinces us that there could have been no other finding properly made. It is argued, however, on behalf of appellant that the judgment rendered October 23, 1935, by the district court of Sheridan County was not received in evidence on the trial of the instant litigation, and that that judgment was one not on the merits and did not conclude the parties thereto as to matters litigable therein. We are inclined to think counsel are in error in both these contentions.

The record now before us establishes that during the course of the trial the parties aforesaid stipulated that, as Exhibit A, the files in the earlier case referred to in the court's finding quoted above "including specifically * * * the judgment entered on October 28, 1935, * * * be, and the same are introduced in evidence in this case without objection." While the Exhibit aforesaid contains only the original form of judgment signed by Judge Ilsley, which constituted his official direction to the clerk to enter the official text thereof on the court's journal as its judgment disposing of the case, there appears on that form the usual clerical file mark, "Filed in the office of the Clerk of the District Court of Sheridan County, Wyoming," duly attested by the signature of the deputy clerk of that court, followed by the notation "J 14-P. 565." We think that under the stipulation aforesaid, nothing to the contrary appearing, the district court had a right to conclude, as we do, that the form of judgment signed by Judge Ilsley and thus filed was a correct copy of the journal entry of the judgment actually made by the clerk.

As to the second contention above mentioned, it may be noted that plaintiff's reply admitted "that the allegations contained in plaintiff's present petition are substantially the same as contained in that filed by plaintiff in this Court on October 23, 1935."

A comparison of the two petitions--the one in this case and the one in the previous suit--further discloses that the second amended petition of the plaintiff on which the first case came to issue and...