Loeper v. Loeper

• Decision Date: 15 September 1914
• Docket Number: 11562.
• Citation: 81 Wash. 454,142 P. 1138
• Parties: LOEPER v. LOEPER et al.
• Court: Washington Supreme Court

142 P. 1138

81 Wash. 454

LOEPER v. LOEPER et al.

No. 11562.

Supreme Court of Washington

September 15, 1914

Department 1. Appeal from Superior Court, Spokane County.

Action by Zora E. Loeper against William F. Loeper and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

John M. Gleeson, of Spokane, for appellant.

Danson Williams & Danson and Geo. D. Lantz, all of Spokane, for respondents.

GOSE J.

On the 27th day of March, 1908, the plaintiff commenced a suit against her husband, the defendant W. F. Loeper, for separate maintenance. She alleged that 'without fault on her part' she was compelled to leave the home of the defendant on the 15th day of November, 1906, and that she thereafter maintained herself. She alleged further that she left her home and lived separate and apart from her husband (a) Because of his cruelty and the cruelty of his children by a former wife, who lived in the family domicile; (b) because he continued to harass and slander her thereafter, telling her employer that she was a woman of bad character, and that she frequented immoral places. The defendant traversed the charges of cruelty, and alleged that the plaintiff, on the date alleged in her complaint, 'abandoned and deserted the defendant without cause.' After the cause had been tried, a judgment was entered on the 9th day of April, 1908 which, among other things, recites:

'That plaintiff Zora Loeper is entitled to none of the relief as demanded in her amended complaint herein, and that said action is hereby dismissed.'

On the 5th day of July, 1912, she commenced this action for a divorce from her husband, on three grounds: (1) Failure to support; (2) cruelty both before and after the separation in November, 1906; and (3) abandonment. She made Emma Loeper, a daughter of the defendant, a party, alleging that the husband had conveyed his property to her for the purpose of defrauding the plaintiff. The defendant husband traversed the charges of wrongdoing on his part, and pleaded the former judgment as a bar to the action. He also alleged that all the matters and things alleged in the complaint were or could have been alleged, and were or could have been litigated, in the former action. It seems to be conceded that the plaintiff has lived apart from her husband since the 15th day of November, 1906. The court held that the judgment in the former suit was res judicata as to all matters occurring before its rendition, and directed counsel to submit their testimony as to matters occurring subsequently to the rendition of the judgment. This they declined to do, and the action was dismissed. The appeal followed.

The appeal presents a single question, viz., is the judgment in the suit for separate maintenance res judicata as to all matters alleged in the complaint occurring prior to its rendition? In Schonborn v. Schonborn, 27 Wash. 421, 67 P. 987, an action for separate maintenance, the court said:

'To maintain the action, it is sufficient for the complaint and the facts to show an abandonment without cause and a neglect or refusal on the part of the husband, having ability, to support his wife, or such neglect as amounts to refusal. Kimble v. Kimble, 17 Wash. 75, 49 P. 216.'

This excerpt is quoted with approval in Herrett v. Herrett, 60 Wash. 607, 111 P. 867. The principle was first announced in Kimble v. Kimble, 17 Wash. 75, 49 P. 216, where it was held that a wife who had been abandoned by her husband without cause could maintain an action in equity for separate maintenance independently of an action for divorce. Under these authorities it was necessary for the appellant in the first suit to show: (a) That her husband had abandoned her without cause, or that she was compelled to live apart from him because of conduct upon his part which in law constituted an abandonment; and (b) that, having the ability to support her, he neglected or refused so to do. The judgment roll in the first suit shows that he had the ability to support her, as certain real estate was decreed to be his separate property. It is not claimed that he has supported her since she left her home. The judgment necessarily determined that the respondent husband had not abandoned the appellant, and that she was at fault in living apart from him. Indeed, it was proven at the trial of this case that the court after the first trial announced from the bench, before the rendition of the judgment, that the clear preponderance of the evidence showed that the appellant left her home without cause. This evidence was objected to and is assigned as error, but we think it was competent.

The whole theory of the doctrine of res judicata is that a question once decided by a court of competent jurisdiction having jurisdiction of the parties is finally decided, until reversed upon appeal or otherwise set aside in some lawful way. Averbuch v. Averbuch, 141 P. 701; Perlus v. Silver, 71 Wash. 338, 128 P. 661; Stay v. Stay, 53 Wash. 534, 102 P. 420; Bruce v. Foley, 18 Wash. 96, 50 P. 935; Harding v. Harding, 198 U.S. 317, 25 S.Ct. 679, 49 L.Ed. 1066; Kalisch v. Kalisch, 9 Wis. 529; Hoag v. Hoag, 210 Mass. 94, 96 N.E. 49, 36 L. R. A. (N. S.) 329.

In Perlus v. Silver we said:

'It is the settled law of this state that, in an action between the same parties, a judgment therein is res adjudicata as to all points at issue, and also as to all points which might have been raised and adjudicated in such action'-- citing numerous authorities.

In Stay v. Stay the same principle was announced, the court saying:

'She alleges no fact that could not have been alleged in the former case, since every act of cruelty relied upon in this action had occurred prior to the time of that trial, and was, or might have been, litigated.'

Speaking to the same point in the Averbuch Case, we said:

'It is elementary law that in divorce actions, as in all others, a judgment is final and conclusive upon all questions which were or might have been litigated'--citing many authorities.

It is not material that the form of the action be the same if the merits were tried in the first action. In re Clifford, 37 Wash. 460, 79 P. 1001, 107 Am. St. Rep. 819.

Schoennauer v. Schoennauer, 77 Wash. 132...