Golden v. Golden, 42592

• Decision Date: 01 April 1963
• Docket Number: No. 42592,42592
• Citation: 246 Miss. 562,151 So.2d 598
• Parties: Wilson GOLDEN, Sr. v. Constance GOLDEN.
• Court: Mississippi Supreme Court

Page 598

151 So.2d 598

246 Miss. 562

Wilson GOLDEN, Sr. v. Constance GOLDEN.

No. 42592.

Supreme Court of Mississippi.

April 1, 1963.

John L. Kennedy, Holly Springs, Smallwood, Darden & Sumners, New Albany, for appellant.

L. Hamer McKenzie, Ashland, for appellee.

GILLESPIE, Justice.

Mrs. Constance Golden, plaintiff-appellee, sued her former husband, Wilson Golden, defendant-appellant, in the Circuit Court of Marshall County to recover $17,234.76 principal, plus interest and attorney's fee. The principal sum represented the amount appellee had paid First State Bank, Holly Springs, to discharge three notes payable to said bank and signed by appellant and appellee. Appellee alleged she was an accommodation endorser of said notes for her then husband, the appellant; that appellant failed to pay said notes; and that appellee paid them out of her personal estate. Copies of the notes were attached to the declaration. Appellant answered the suit and alleged that appellee was a co-maker. He also set up several defenses, including res judicata on the ground that the matter in issue had theretofore been adjudicated in the chancery court.

Judgment was entered on a verdict for appellee, and defendant appealed to this Court.

Appellant argues that the lower court should have sustained his plea of res judicata. We agree.

The proof on the plea of res judicata consisted of the original bill of complaint filed by appellee in the Chancery Court of Marshall County, Cause No. 9725, in which appellee sued appellant for a divorce, custody of the children, and support money for the children. Appellee also charged in her original bill the facts concerning her execution, with her husband, of the notes payable to First State Bank and charged that upon refusal of her husband to pay said notes she was required to pay the same out of her personal estate. Copies of the notes, identical to the ones sued on in the case at bar, were attached to her original bill in the chancery court. She also averred in her divorce bill that she was entitled to receive recovery of the sum paid out by her in discharging said notes, together with lawful interest. In that suit, appellee also sought to have the chancery court impress a trust on certain property then owned by appellant, which appellee charged was saved from foreclosure by her payment of said notes. In the prayer of her divorce bill, appellee prayed for a divorce, custody of the children, support for the children, and that defendant be required to repay appellee the amount spent by her in satisfying said notes, and that a trust be impressed upon appellant's property until said indebtedness be satisfied. In the final decree in the divorce case, the court stated that the facts did not justify the impression of a trust upon the property of the defendant therein, and gave no relief on the notes.

A final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies, and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand, and cause of action. 30A Am.Jur., Judgments, Sec. 363.

The essentials to constitute res judicata are (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 quality of the person for or against whom the claim is made. Morrissey v. Bologna, 240 Miss. 284, 123 So.2d 537.

The identical notes were attached to appellee's original bill in the chancery court suit, and that court had jurisdiction to render judgment on the notes. Essentially the same issues were presented to the chancery court by the pleadings therein as were presented in the subsequent suit in circuit court. In our opinion, all of...