Kuhn v. Kuhn, 17597.

• Decision Date: 06 June 1947
• Docket Number: No. 17597.,17597.
• Citation: 73 N.E.2d 359,117 Ind.App. 463
• Parties: KUHN et al. v. KUHN.
• Court: Indiana Appellate Court

117 Ind.App. 463

73 N.E.2d 359

KUHN et al.

v.KUHN.

No. 17597.

Appellate Court of Indiana, in Banc.

June 6, 1947.

Appeal from Wabash Circuit Court; Walter S. Bent, Judge.

Action by Margaret Iona Kuhn, now Schue, against Richard D. Kuhn and another to replevin certain property from defendants. From a judgment for plaintiff, defendants appeal.

Affirmed.

Seth E. Rowdabaugh, of Warsaw, for appellants.

Charles C. Campbell, of Rochester, and F. W. Plummer, of Wabash, for appellee.

FLANAGAN, Judge.

Appellee brought this action to replevin certain personal property from appellants. The trial court made a special finding of facts, entered its conclusions of law thereon and rendered judgment for appellee. Appellants duly excepted to the conclusions of law and filed a motion for a new trial which was overruled.

The legal question presented is whether title to the property involved was adjudicated in a prior divorce action between appellant Richard D. Kuhn and appellee. In that action appellee sued appellant Richard D. Kuhn for divorce and asked for alimony. The pleadings contained no averments as to the ownership of any particular item of property. The court heard evidence, however, as to the ownership and value of the personal property involved in this replevin action. In the decree rendered no alimony was awarded and nothing was said as to the ownership of property. Appellant Richard D. Kuhn says that since he was in possession of the property involved, and the court failed to adjudge ownership in appellee, the effect was an adjudication of ownership in him. Appellee contends that the ownership of property was not involved in the divorce action.

A decree of divorce by a court having jurisdiction of the subject matter and the parties is deemed and held to be an adjudication between the divorced parties of all property rights or questions growing out of or connected with the marriage. Muckenburg v. Holler, 1867, 29 Ind. 139, 92 Am.Dec. 345;Behrley v. Behrley, 1884, 93 Ind. 255;Walker et al. v. Walker et al., 1898, 150 Ind. 317, 50 N.E. 68;Watson v. Watson, 1906, 37 Ind.App. 548, 77 N.E. 355;Wise v. Wise, 1918, 67 Ind.App. 647, 119 N.E. 501;Radabaugh v. Radabaugh, 1941, 109 Ind.App. 350, 35 N.E.2d 114. However, the wife's separate property is not affected by the divorce decree unless the question of ownership of some particular item or items of property has been put in issue and the court has entered judgment in regard thereto as a part of the divorce decree. State ex rel. Haines et al. v. Parrish et al., 1890, 1 Ind.App. 441, 27 N.E. 652;Fredericks v. Sault, 1898, 19 Ind.App. 604, 49 N.E. 909.

Appellants contend that the property involved was bought during the marriage and used in the household and, therefore, the question of...