Cooper v. McCoy

• Citation: 173 S.W. 412,116 Ark. 501
• Decision Date: 01 February 1915
• Docket Number: 152
• Parties: COOPER v. MCCOY
• Court: Supreme Court of Arkansas

173 S.W. 412

116 Ark. 501

COOPER v. MCCOY

No. 152

Supreme Court of Arkansas

February 1, 1915

Appeal from Greene Chancery Court; C. D. Frierson, Chancellor affirmed.

STATEMENT BY THE COURT.

Maude McCoy brought suit for partition of the estate of Jacob H Cooper, her father, against his other children, naming them and alleged that she was the sole surviving child of his marriage to Caroline Cooper and owned a one-seventh undivided interest in the lands described; that four of the children were minors and had a claim of homestead in the lands, which should include only forty acres, which was alleged to be of the value of $ 2,500; that the homestead should be defined and set aside to the minors, that the remaining part of the lands were subject to partition between all the said heirs and as to Ella J. Cooper, alleged:

"Said Ella J. Cooper claims some interest in the above described real estate by way of dower and homestead, but plaintiff avers that such claim is not well founded, and that said defendant has no interest whatsoever in said above described real estate."

The prayer of the complaint as to her was that said Ella J Cooper be required to set up by answer in this case any alleged rights or claims which she may have in said lands, and that the same may be adjudged by this court to be null and void.

The general prayer was for the setting apart of the homestead to the minors of the forty acres of land containing the dwelling, etc., and that the remainder, be partitioned among all the heirs. The administrator was not made a party.

Appellant demurred to the complaint which the court, upon hearing, treated as a motion to make more definite and appellee, declining to amend, sustained the demurrer and plaintiff refusing to plead further, dismissed the complaint as to said Ella J. Cooper, to which action the plaintiff excepted and prayed an appeal to the Supreme Court. The appeal was not perfected, however, and in April, 1912, the said Maude McCoy, plaintiff in the first suit, brought another suit against the same parties and C. C. Cooper as administrator of the estate of Jacob H. Cooper, the deceased, alleging that he had in his hands moneys and chattels of greater value than $ 3,500, and that all the claims against the estate had been paid, that said amount should be disbursed, but was held by the administrator, on account of a pretended claim of Ella J. Cooper of a dower interest therein, that plaintiff was entitled to one-seventh interest in the money; that Ella J. Cooper had no claim against said estate because she was never the lawful wife of Jacob H. Cooper and hence not his widow; that she never had at any time any right, claim or interest whatever in said money or chattel property and "that said Ella J. Cooper has not now and has never had any right, title or interest in or concerning any of the real estate therein above described, either as the lawful wife of Jacob H. Cooper, deceased, or otherwise," etc.

The relief sought as to partition of the lands of the estate of Jacob H. Cooper between the heirs was the same in the second as in the first complaint. The complaint prays the appointment of commissioners to set apart to plaintiff one-seventh of the lands described, excepting the eighty acres designated as the homestead of the minors; that the commissioners be directed to set apart to the minor children named, the designated eighty acres and improvements and no more. That the court declare plaintiff and the six other children of Jacob H. Cooper, deceased, named therein, the sole and only owners and distributees of the money and personal property of his estate now in the hands of the administrator; that he be directed to pay over same, after making final settlement, one-seventh part to plaintiff; that Ella J. Cooper be required to set up by answer her pretended claims to either the personal or real property of the estate and that such pretended claims be adjudged void and for general relief.

Appellant plead the judgment of dismissal of the first complaint as res adjudicata in bar of the second action. This plea alleged the filing of the suit, the demurrer, the decree, treating the demurrer as a motion to make more specific and permitting plaintiff to amend the complaint, plaintiff's refusal to do so, the sustaining of the demurrer and the dismissal of the complaint. That an appeal was prayed and granted but never perfected; that more than a year had elapsed since the decree dismissing the complaint which became a final judgment; that all matters alleged in the last complaint against appellant were properly subject to hearing and determination in the first and embraced within the meaning and terms thereof.

This plea was overruled and appellant answered denying the right of appellee to the interest claimed in the property and estate of Jacob H. Cooper and the other allegations of the complaint.

The chancellor found that plaintiff, Maude McCoy was the sole surviving heir of Jacob H. Cooper's marriage to her mother, Caroline Cooper, that he left his family and afterward, during the life of his said wife, and without any divorce procured, married appellant, Ella J. Cooper, who had no knowledge or information that he was a married man until fifteen years or more thereafter, and that the other defendants, children of this last marriage, were also heirs and entitled to inherit his estate each in equal share with plaintiff, and that Ella J. Cooper was never the lawful wife nor widow of Jacob H. Cooper, deceased, and decreed accordingly and that Ella J. Cooper take nothing by this suit and dismissed her answer and cross-complaint for want of equity, from which judgment she prosecutes this appeal.

Decree affirmed.

M. P. Huddleston, Robert E. Fuhr and R. P. Taylor, for appellant.

1. The plea of res adjudicata should have been sustained. No appeal was taken from the first decree, which was a final judgment. 83 Ark. 371; 99 Id. 496; 102 Id. 380; Radford v. Samstag, 113 Ark. 185; 99 Ark. 433; 1 Freeman on Judgments, § 16; 11 Enc. Pl. & Pr. 926; 23 Cyc. 670; 14 Ark. 159; 63 Id. 254; Kirby's Digest, §§ 6169-6228; 1 Freeman on Judg., § 267.

2. Where it appears that parties to a prior marriage were living at the time of a subsequent marriage by one of the parties to a third person, it will be presumed that the disability of the prior marriage has been removed by a divorce before the time of the second marriage. 222 Mo. 74; 17 A. & E. Ann. Cas., 673, 683; 43 P. 756; 64 Id. 195; 35 N.E. 525; 41 Id. 600; 77 S.W. 122, etc. The burden is on him who attacks the validity of the subsequent marriage to show its invalidity. 128 Ga. 339; 57 S.E. 709; 21 Ore. 387; 28 P. 388; 98 F. 63; 57 Ark. 278.

Geo. A. Burr and R. E. L. Johnson, for appellee.

1. This record does not present a case for the application of res adjudicata. 8 S.W. 441; 4 Wall. 232; 109 U.S. 125, 426; 1 A. K. Marsh. 321; 99 Ark. 433. The judgment on the demurrer was wrong. 47 Ark. 222; 1 S.W. 99.

2. The causes of action were not the same, nor the same parties, nor privies, nor the same issues, hence the doctrine does not apply. 23 Cyc. 1155-1156-7; 76 Ark. 391.

3. The decree in the first case was based solely on a defective pleading. 23 Cyc. 1152. It was not a bar. 95 Pa.St. 521; 63 Tex. 698; 9 Enc. Pl. & Pr. 621; 48 Tex. 62.

4. The second marriage was void. 82 Ark. 76; 169 S.W. 817.

OPINION

KIRBY, J., (after stating the...