Mccotter v. Carle

• Decision Date: 22 December 1927
• Citation: 140 S.E. 670
• Parties: McCOTTER. v. CARLE.
• Court: Virginia Supreme Court

140 S.E. 670

McCOTTER.

v.CARLE.

Special Court of Appeals of Virginia.

Dec. 22, 1927.

Error to Circuit Court of City of Hopewell.

Action by Belle E. Carle against J. K. McCotter. Judgment for plaintiff, and defendant brings error. Affirmed.

J. Toomer Garrow and Chas. T. Morris, both of Hopewell, for plaintiff in error.

Archer L. Jones, of Hopewell, for defendant in error.

CRUMP, P. Belle E. Carle secured a verdict and judgment against J. K. McCotter for $500 in June, 1926. The parties will be referred to according to their respective positions as plaintiff and defendant in the lower court.

The plaintiff brought her action in March, 1926, by notice of motion against McCotter, in which it was claimed that he was indebted to her in the sum of $1,217 and interest. Filed with the notice of motion, was the following account of the items claimed:

                -------------------------------------------------------------------------------
                |By cash loan to purchase automobile                                |$317 00  |
                |-------------------------------------------------------------------|---------|
                |By cash loan to pay five notes in the sum of $64.00 each           |320 00   |
                |-------------------------------------------------------------------|---------|
                |By cash loan                                                       |40 00    |
                |-------------------------------------------------------------------|---------|
                |Rent tor room for three years at an agreed price of $10 00 per     |360 00   |
                |month                                                              |         |
                |-------------------------------------------------------------------|---------|
                |Rent for office at $5.00 per month for three years                 |180 00   |
                |-------------------------------------------------------------------|---------|
                |Toyal                                                              |$1,217 00|
                -------------------------------------------------------------------------------
                

The items consist of an alleged advance on the purchase of an automobile, of cash advanced to pay certain notes of the defendant, of a further loan of $40, and of certain moneys due from the defendant as rent.

It appears from the evidence that Belle E. Carle, at the time a widow, was married to the defendant McCotter in August, 1922, and that by a decree of the corporation court of Hopewell, on July 11, 1925, she was granted a divorce from bed and board from him, which was subsequently, by a decree of December 15, 1925, merged into and made a decree of divorce from the bond matrimony, with leave to the plaintiff to abandon the name of McCotter and to resume her former name of Mrs. Belle E. Carle.

The transactions out of which the debts, alleged to be due, arose, occurred prior to the marriage of the parties in 1922. An automobile was purchased in December, 1920, the title to which was transferred to McCotter, who executed the deferred payment purchase notes, but with the agreement that Mrs. Carle was to pay one-half of the purchase money, and the car was to become their joint property. It was out of the purchase of this automobile that the first two items of the account originated. There was some insistence in argument on behalf of plaintiff in error that the purchase of the automobile and the dealings of the parties concerning its use constituted a partnership. It is suffi-cient to say that the testimony clearly establishes that the automobile was bought and used as joint property, and there is no foundation for the contention that there existed a partnership between the parties in this regard.

There was considerable testimony, much of the evidence being in conflict, and the verdict of the jury was conclusive upon the merits of the case, with the exception of the defense of former judgment or res judicata, which was disallowed by the trial court.

In a formal plea of former judgment, the defendant vouched the records in two prior chancery cases between the same parties; the plea being accompanied by a copy of the complete record in each of these cases. The earlier case was a divorce suit brought by Mrs. Carle, then Mrs. McCotter, against her husband, the present defendant in the instant case, in which suit she prayed for a divorce from the bond of matrimony, which was denied by a final decree of October 14, 1924, dismissing the bill. The record in the second case discloses also a divorce suit between the parties, in which Mrs. Carle filed a bill in April, 1925, praying for a divorce on the ground of desertion; in this case she was awarded a divorce from bed and board, which was enlarged into divorce from the bond of matrimony by a final decree in December, 1925.

These two prior chancery causes were between the same parties, and it is insisted on behalf of the defendant that in one or both of these cases a cause of action was alleged identical, totally or partially, with the cause of action in the instant case, and that the final decree in one or both of the cases involved an adjudication upon the claims set up by the plaintiff in the instant case, and therefore she is barred or estopped from asserting them.

The sufficiency of the plea, and the former records mentioned, to sustain any defense under the principles of the doctrine of res judicata, has been fully argued here, and we will pass upon the questions presented in argument, without reference to other reasons assigned by the trial court for rejecting the plea, and refusing to allow the defense tendered thereby.

The general principles of the doctrine of res judicata, under which a party becomes barred, because he is concluded by a former record and judgment between the same parties upon the same cause of action, or is estopped to assert a matter in issue and adjudicated in a former case, though not upon the same cause of action, have been so frequently before the court of last resort in this state, and so often considered, that we may regard them as too familiar for restatement. We may refer, among the later cases, to Harris v. Sparrow, 146 Va. 747, 132 S. E. 694 Brunner v. Cook, 134 Va. 266, 114 S. E. 650, Smith v. Holland, 124 Va. 663, 98 S. E. 676, Ivey v. Lewis, 133 Va. 122, 112 S. E. 712, American Surety Co. v. White, 142 Va. 7, 127 S. E. 178, City of Richmond v. Davis, 135 Va. 319, 116 S. E. 492, and Craig v. Craig, 118 Va. 284, 87 S. E. 727.

Considering, first, the record in the second divorce suit, in which there was a final decree in December, 1925, we find nothing therein upon which reliance can be had for the contention that it has the effect of a former judgment and estops the plaintiff in the instant case from asserting her claim against the defendant. The bill contains the usual recitals as to the marriage and the jurisdictional essentials, alleges in ample terms that the defendant deserted and abandoned the plaintiff, and concludes with this paragraph, just preceding the prayer:

"Your complainant further would show unto your honor that she was at the time of the marriage to the said defendant possessed of certain real estate situated in the state of Virginia and elsewhere, and that the said defendant was possessed of certain real estate situate in the state of Virginia and elsewhere."

The prayer of the bill makes no reference to any property rights of the parties except such as arose out of the marriage. The defendant did not appear nor answer, and the cause was heard on oral testimony in open court, which was not reduced to writing. In neither the bed and board decree nor in the final decree from the bond of matrimony was any alimony decreed nor the property rights of either of the parties considered or decreed upon. The effect of the decrees upon the respective properties of the parties and their marital rights were such, and only such, as the law affixed. Gum v. Gum, 122 Va. 32, 94 S. E. 177; Jones v. Kirby, 146 Va. 109, 135 S. E. 676. The claims asserted in the instant case were in no way in issue, nor involved, nor passed upon in that divorce suit, and the record lends no support to the assertion that the cause of action there was in any respect the same as in the instant case.

The other divorce record shows that in a bill filed in December, 1922, Mrs. Carle (then Mrs. McCotter) prayed for a divorce from the bond of matrimony upon one of the grounds designated by section 5103 of the Code as causes for the complete severance of the marriage tie. The bill states, in enumerated clauses, the plaintiff's case for a divorce, and as to her property contains the following:

"That the said J. Kenneth McCotter now has in his possession and refuses to deliver to your complainant certain personal effects of your complainant, consisting of one purse, with a small amount of gold money therein, and a bundle of valuable papers, consisting of deeds, life insurance policies, fire insurance policies, etc.; and that, in addition to the foregoing, the said J. Kenneth McCotter owes to your complainant the sum of $600, advanced by her at his instance and request on the purchase price of one Ford automobile, which should be repaid."

The prayer of the bill has the usual requests, among them, "and that he may be required to" pay to your complainant the amount of money due to her as above mentioned, " and concludes with the prayer for...