Haven v. Trammell

• Decision Date: 16 November 1920
• Docket Number: 9855.
• Parties: HAVEN v. TRAMMELL, SHERIFF ET AL.
• Court: Oklahoma Supreme Court

193 P. 631

79 Okla. 309, 1920 OK 348

HAVEN v. TRAMMELL, SHERIFF ET AL.

No. 9855.

Supreme Court of Oklahoma

November 16, 1920

Syllabus by the Court.

The plaintiff obtained a temporary injunction, enjoining and restraining a sheriff from selling land under an execution which said temporary injunction was dissolved, and the judgment dissolving the same not appealed from. Thereafter plaintiff obtained a second temporary injunction to restrain the sheriff from selling, under an alias execution, in the same case, the same land as to which the first temporary injunction was issued. Held, that said second temporary injunction was res judicata.

Where a petition for divorce contains a prayer for general equitable relief, but does not specifically pray for alimony, alimony being a mere incident to divorce, may be properly awarded. Harrison, J., dissenting.

Where in a divorce, alimony in money is decreed, which is adjudged to be a lien upon all the real estate owned by the defendant in the state, the homestead of the defendant, owned at the time such judgment is rendered, may be legally levied upon and sold for the payment of the said alimony.

Appeal from District Court, Woodward County; T. P. Clay, Judge.

Action for injunction by John Haven against R. L. Trammell, Sheriff and Ruby Harriman. Second temporary injunction dissolved and, after motion for new trial overruled, plaintiff appeals from the judgment. Affirmed.

E. L. Mitchell, of Clinton, for plaintiff in error.

R. F. Baird and A. E. Pearson, both of Oklahoma City, S. Grim, of Cheyenne, and W. M. Taylor, of Cushing, for defendants in error.

COLLIER J.

On July 11, 1912, Ruby Haven (now Ruby Harriman) filed her petition for decree of absolute divorce of and from John Haven, hereinafter designated plaintiff, in which she prayed for an absolute divorce, attorney's fees, costs, and for general relief. Judgment by default, on personal service, was rendered for absolute divorce, $1,000 alimony, $100 for attorney's fees, and for costs, which was "made a lien on all real estate owned by said plaintiff within this state," a transcript of which said judgment was filed in the office of the district court of Roger Mills county, and an alias execution, directed to the sheriff of Roger Mills county, was issued, in pursuance of which lands belonging to said plaintiff were levied upon in Roger Mills county.

A temporary injunction was granted by the county judge, in the absence of the district judge from the county, restraining the sheriff from selling said lands, which temporary injunction was dissolved by the district court. Thereafter a second temporary injunction, identical as to statement made and relief prayed, was granted, and dissolved, the court making the following findings of facts:

"The court finds, as a matter of fact, that there was a decree of the district court of Woodward county, rendered as alleged in the petition, making the judgment and decree of that court a lien upon any and all real estate of the defendant; that the judgment has not been paid; that execution has been issued against the defendant and levied upon his real estate; that the sale thereof was stayed by a temporary injunction, which was dissolved by this court, as shown by the journal entry of judgment introduced in this cause; that thereafter another execution was issued on the same property, and was again levied upon the land of the defendant in this cause; that the land upon which the execution is levied is the homestead of the defendant and his mother and two children which he is raising, that he has about $600 worth of personal property--the value of the land has not been shown."

A timely motion for a new trial was made, which was overruled and excepted to, and the plaintiff gave notice in open court of his intention to appeal from the judgment of the trial court, dissolving said second temporary injunction to the Supreme Court of Oklahoma, and perfected this appeal.

The plaintiff, in support of his contention "that the court committed reversible error in dissolving said second temporary injunction," urges, among other grounds which we deem unnecessary to recite, the following grounds:

First. That the judgment as to alimony in this case is a void judgment, for the reason that the petition in this case fails to specifically pray for alimony.

Second. That the land seized under an execution was and is the homestead of plaintiff, and is not subject to sale to satisfy any execution or judgment.

The record discloses that neither one of said temporary injunctions was obtained cotemporary with the action for divorce, but each is a separate and independent collateral attack upon the judgment and decree rendered in said action; that the order dissolving the first temporary injunction was not appealed from; that the parties, the subject-matter, and relief prayed are identical in each of said temporary injunctions, and therefore the judgment in dissolving the said first injunction is a complete bar to the case at issue, and that it follows that the said second temporary injunction was res judicata, and the court did not err in dissolving said second temporary injunction.

In Baker v. Leavitt, 54 Okl. 70, 153 P. 1099, it is held:

"A final judgment of a court of competent jurisdiction is conclusive between the parties and their privies, in a subsequent action involving the same subject-matter, not only as to all matters actually litigated and determined in the former action, but as to all matters germane to issues which could or might have been litigated or determined therein. City of El Reno et al. v. Cleveland-Trinidad Paving Co., 25 Okl. 648, 107 P. 163, 27 L. R. A. (N. S.) 650; Woodworth, County Clerk, v. Town of Hennessey, 32 Okl. 267, 122 P. 224; Markham v. Dugger, 34 Okl. 492, 126 P. 190; Gosnell v. Prince, 36 Okl. 445, 129 P. 27; Engle et al. v. Legg, 39 Okl. 475, 135 P. 1058; Pioneer Telephone & Telegraph Co. v. State, 40 Okl. 417, 138 P. 1033; Wiley v. Edmondson, 43 Okl. 1, 133 P. 38; Alfrey v. Colbert et al., 44 Okl. 246, 144 P. 179; Bowen v. Carter, 42 Okl. 565, 144 P. 170; Prince v. Gosnell, 47 Okl. 570, 149 P. 1162; Earl v. Earl et al., 48 Okl. 442, 149 P. 1179; Corrugated Culvert Co. v. Simpson Township, 51 Okl. 178, 151 P. 854; Parks v. Haynes, 52 Okl. 63, 152 P. 400."

While our holding that the subject-matter of this appeal is res judicata renders it unnecessary to pass upon any other alleged errors insisted upon by the plaintiff, we have thought proper to review the following alleged errors assigned:

"First. That a district court has no jurisdiction to award alimony where the petition in a divorce case does not specifically pray for alimony.

Second. That the homestead of a defendant in an action for divorce is not subject to legal levy and sale, for the satisfaction of an amount decreed as alimony."

Based upon the authorities hereinafter cited, we are of the opinion that each of the two alleged errors above set out are without merit.

R. C. L. vol. 1, p. 883, says:

"Obviously, irrespective of the nature of the proceeding wherein an award of alimony is sought, the better practice would suggest that a demand therefor, and the grounds pertinent thereto, should be fully alleged in the original pleadings. In divorce or separation suits, however, owing to the fact that a demand for alimony is not an essential part of the cause of action, but is merely incidental thereto, it may be awarded in the absence of a specific request therefor in the original bill, and the jurisdiction of the court is not dependent on an averment therein of the husband's resources or ability to pay alimony. It is unnecessary for the original pleadings to anticipate a claim for alimony where grounds for a divorce or separation are sufficiently alleged. Lynde v. Lynde, 162 N.Y. 405, 56 N.E. 979, 48 L. R. A. 679, 76 Am. St. Rep. 332; Cohen v. Cohen, 150 Cal. 99, 88 P. 267, 11 Ann. Cas. 520; Gaston v. Gaston, 114 Cal. 542, 46 P. 609, 55 Am. St. Rep. 86; Sprague v. Sprague, 73 Minn. 474, 76 N.W. 268, 42 L. R. A. 419, 72 Am. St. Rep. 636."

Section 4969, Revised Laws 1910, in part provides:

"When a divorce is granted the wife,

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