Davis v. Davis, 28466.
| Decision Date | 20 February 1943 |
| Docket Number | 28466. |
| Citation | 134 P.2d 467,16 Wn.2d 607 |
| Parties | DAVIS v. DAVIS et al. |
| Court | Washington Supreme Court |
Department 2.
Action for separate maintenance by Blanche E. Davis against Thomas H. Davis and another, wherein the named defendant filed a cross-complaint for annulment or in the alternative, for a divorce. From an order of dismissal, the named defendant appeals.
Affirmed.
See also, 130 P.2d 355.
Appeal from Superior Court, King County; Hugh C. Todd, Judge.
Chas A. Cave, of Auburn, and James G. Mulroy, of Seattle, for appellant.
Tworoger Horr & Franco, of Seattle (Albert Hanan, of Seattle, of counsel), for respondent.
The plaintiff commenced this action by filing a complaint for separate maintenance, to which the defendant cross-complained for annulment or, in the alternative, for a divorce. The case was submitted on those issues, but no evidence was introduced in support of the defendant's allegations upon which he based his claim for annulment or divorce. A decree of annulment, however, was entered, based entirely on an oral stipulation of the parties in open court that such decree should be entered. At that time the court gave the plaintiff judgment against the defendant for two thousand dollars as damages. The defendant then appealed to this court from that part of the judgment or decree which awarded the plaintiff a money judgment. This court thereupon assumed jurisdiction of the whole case and set aside the decree of annulment and the money judgment, and remanded the case to the superior court for further proceedings not inconsistent with the ruling of this court. Davis v. Davis, 3 Wash.2d 448, 101 P.2d 313, 315. In deciding that case we stated:
The defendant thereafter filed a motion in the superior court for leave to present further evidence, which was denied. The defendant then applied to this court for a writ of mandamus to compel the trial court to allow the introduction of evidence in support of his allegations for an annulment. His application for the writ was denied without opinion. The superior court thereupon entered its 'amended findings of fact and conclusions of law,' finding therein that the parties married October 3, 1938; that no children were born of the marriage; that the plaintiff had failed to show that she was entitled to separate maintenance; that the defendant had failed to sustain the allegations of his cross-complaint, and that the complaint of the plaintiff and the cross-complaint of the defendant should be dismissed. An order of dismissal was entered accordingly, and the defendant appealed.
He assigns as error that 'The trial court had no jurisdiction to enter any order with reference to the decree of annulment.'
The appellant urges that he had by his prior appeal attacked only the money judgment granted the respondent, and that this court had no jurisdiction to set aside or vacate the decree of annulment which had been entered; and, further, that the trial court erred in complying with the directions of this court. This issue was settled by the decision which we rendered in the prior appeal, and the appellant is now precluded from again raising it by another appeal in the same case. In the prior decision we held that a decree of annulment, like a decree of divorce, must be based on specific findings of fact which would sustain the entry of such decree, and that the decree of annulment based solely on the finding that the parties had stipulated to its entry was void as against public policy; and then directed that the decree '* * * will therefore be set aside and the cause remanded for further proceedings not inconsistent with this ruling.'
This court from its early days has been committed to the rule that questions determined on appeal or questions which might have been determined had they been presented will not again be...
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