Johnson v. Johnson

• Court: Kentucky Court of Appeals
• Writing for the Court: HAZELRIGG, J.
• Citation: Johnson v. Johnson, 96 Ky. 391, 29 S.W. 322 (Ky. Ct. App. 1895)
• Decision Date: 17 January 1895
• Parties: JOHNSON v. JOHNSON.

29 S.W. 322

96 Ky. 391

JOHNSON v. JOHNSON.

Court of Appeals of Kentucky.

January 17, 1895

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by Silas Johnson against Josephine Johnson, to recover personal property which had been given her under a former judgment granting her a divorce a mensa et thoro, and affirmed on appeal (2 S.W. 487), and to have restored to him the possession of certain realty thereby adjudged to her for life; plaintiff having since prevailed in an action by him for an absolute divorce. There was judgment for plaintiff from which defendant appeals. Reversed.

O'Neal Phelps, Pryor & Selligman, for appellant.

HAZELRIGG J.

In a former action between the appellant and the appellee there was a judgment rendered in October, 1885, granting the appellant a divorce a mensa et thoro from the appellee, and in lieu of alimony awarding her certain personal property and household goods then in her possession, and also settling on her for life a house and lot situated on Lampton street, in Louisville, Ky. theretofore belonging to her husband. On appeal to this court that judgment was affirmed. 2 S.W. 487. Thereafter, in 1887, the husband brought a suit for absolute divorce, and obtained the relief sought in 1891. This latter judgment provided, in general terms, for a restitution of any property not disposed of at the commencement of the action which either party may have obtained directly or indirectly from or through the other during marriage, in consideration or by reason thereof. Thereupon the appellee instituted this action against the appellant, seeking to recover the personal property which had been given her under the former judgment and to have restored to him the possession of the house and lot formerly adjudged to the wife for life. Judgment to that effect was rendered by the chancellor, and the wife has appealed.

We are of opinion that the property theretofore adjudged to the wife in the judgment of 1885 is unaffected by the general and formal order of restitution in the judgment of 1891. The law (section 425, Civ. Code) provides that every judgment for a divorce from the bond of matrimony shall contain such an order of restitution, but the order is merely a formal one and is not intended to settle any controversy concerning the title of property; certainly not to set aside a former final judgment of the court between the divorced parties. That...