Brown v. Brown

• Decision Date: 23 June 1934
• Citation: 72 S.W.2d 557
• Parties: BROWN v. BROWN.
• Court: Tennessee Supreme Court

72 S.W.2d 557

BROWN v. BROWN.

Supreme Court of Tennessee.

June 23, 1934.

Error to Circuit Court, Davidson County; John W. Hilldrop, Special Judge.

Suit by Mary L. Brown against Randall G. Brown. Judgment of dismissal, and complainant appeals.

Reversed and remanded.

Robert L. Sadler, of Nashville, for plaintiff in error.

A. W. Akers, of Nashville, for defendant in error.

SWIGGART, Justice.

Mary L. Brown's suit for divorce was dismissed by the circuit court of Davidson county, by the following order:

"This cause came on to be heard before the Honorable A. B. Neil, Judge, etc., upon the original bill of the complainant, the answer of the defendant thereto, and upon proof of witnesses introduced in open Court, from all of which the Court finds that the allegations of the complainant's bill have not been sustained by the proof.

"It is, therefore, ordered, adjudged and decreed by the Court that complainant's bill be, and the same is hereby dismissed without prejudice, and that the defendant, Randall G. Brown, have and recover of the complainant, Mary L. Brown, all the costs of this cause, for which execution may issue."

Her subsequent suit, now before us on her appeal, wherein her petition is identical with that of the previous suit, was dismissed, on the ground that the judgment above quoted is res adjudicata and a bar to the present action.

The petitioner, appellant here, contends that the words "without prejudice," qualifying the judgment of dismissal, deprived that judgment of any force as an adjudication of the merits of her claim of right to a divorce for the causes alleged in her petition, and left her free to institute and prosecute a new action on the same grounds.

An action for divorce, whether brought in a court of law or equity, is tried according to the forms of chancery. Broch v. Broch, 164 Tenn. 219, 47 S.W.(2d) 84. Since the suit is one which involves a social status, in which the state, as well as the parties, is interested, it is treated by statute and by judicial action as sui generis. Lingner v. Lingner, 165 Tenn. 525, 56 S.W.(2d) 749.

The circuit court, in dismissing the first suit without prejudice, followed the action taken by this court in Fulford v. Fulford, 156 Tenn. 640, 4 S.W.(2d) 350, 351. In that case the complainant had not complied with a general rule of procedure which required that her testimony be supported by corroborative evidence. She had, therefore, failed to support the averments of her petition by adequate proof. Her suit was accordingly dismissed, but the judgment of dismissal was directed by this court to be "without prejudice to the rights of the complainant to bring another suit which she may be able to sustain with sufficient proof."

We construe the judgment of the circuit court in the first suit, as in the case just cited, to mean that although the petitioner had not sustained her petition by proof sufficient to empower the court to grant her a judgment of divorce, the court was unwilling to finally adjudicate the merits of her complaint, and therefore dismissed her petition "without prejudice" to her right to renew her claim in another action. So construed, the judgment was not an adjudication of the merits nor a bar to the new suit on the same cause of action....