Johnson v. Johnson

• Decision Date: 04 June 1894
• Citation: 20 Colo. 143,36 P. 898
• Parties: JOHNSON v. JOHNSON.
• Court: Colorado Supreme Court

36 P. 898

20 Colo. 143

JOHNSON v. JOHNSON.

Supreme Court of Colorado

June 4, 1894

Appeal from district court, Arapahoe county.

Action by Joseph D. Johnson against Ella V. I. Johnson to establish a resulting trust. From a judgment for defendant, plaintiff appeals. Reversed.

A. B. Ullery and J. H. Reddin, for appellant.

Belford & Marsh and W. M. Duff, for appellee.

GODDARD J.

This is an action brought by appellant (plaintiff below) to establish a resulting trust in certain real estate in the city of Denver, the legal title to which is in appellee (defendant below). Appellee, in her answer, set up, inter alia, the defense of res judicata, and, by consent, the issue thereby presented was first tried, and the court below found, upon the evidence introduced, that this defense was sustained and, it being decisive of the case, rendered judgment in favor of appellee. The evidence introduced and relied on to support this defense was the record in a certain action for divorce theretofore instituted by appellant against appellee wherein a decree was rendered in her favor on July 10th 1891. From this record it appears that appellant, as plaintiff in that suit, set forth in his complaint a cause of action for divorce, and also the facts upon which he relies in this action to establish his right to an undivided half of the real estate in controversy. The appellee (defendant in that action) filed a cross complaint, setting up grounds for divorce as against him, and also alleging title to the property in herself. The bill of exceptions does not disclose the evidence offered upon the trial of that cause, but sets forth the following findings of fact, and decree rendered thereon: 'First, that the plaintiff and defendant were duly married on the 24th day of April, A. D. 1884, at the city of Denver, in the county of Arapahoe, and state of Colorado; second, that ever since their said marriage they have, and still do, reside in said city, county, and state; third, that they lived and cohabited together as husband and wife from the time of said marriage until on or about the 9th day of February, 1891 when they separated from each other, and have not since lived and cohabited together; fourth, that neither the plaintiff nor defendant has been guilty of cruel and inhuman treatment toward the other during their marital relations; fifth, that the plaintiff has been guilty of habitual drunkenness for more than a year last past before the commencement of this action; * * * seventh, that there are no children living, the issue of said marriage.' Decree: 'Upon the findings of fact aforesaid, it is ordered and decreed that the plaintiff's complaint be and the same is hereby dismissed; that the defendant, Ella V. I. Johnson, be and she is hereby forever divorced from the plaintiff, and the marital relations heretofore existing between the plaintiff and the defendant are hereby absolutely dissolved; it is also further ordered, adjudged, and decreed that ...