Piro v. Piro

• Decision Date: 04 May 1961
• Docket Number: No. 13679,13679
• Citation: 349 S.W.2d 626
• Parties: Herbert PIRO, Appellant, v. Rosie Nell PIRO, Appellee.
• Court: Texas Court of Appeals

Page 626

349 S.W.2d 626

Herbert PIRO, Appellant, v. Rosie Nell PIRO, Appellee.

No. 13679.

Court of Civil Appeals of Texas, Houston.

May 4, 1961.

On Second Motion of Rehearing Sept. 7, 1961.

Rehearing Denied Sept. 28, 1961.

John H. Holloway, Houston, for appellant.

O'Neal Morris, Houston, for appellee.

COLEMAN, Justice.

This is an appeal from a judgment dividing community property rendered in a divorce action. The only community property involved is a judgment for workmen's compensation benefits.

Appellee, Rosie Nell Piro, filed suit for divorce in the District Court of Harris County, which was tried on October 13, 1958. The trial court rendered a decree of divorce and in connection therewith made a division of the community property. Appellant perfected an appeal to the Court of Civil Appeals and on July 10, 1959, 327 S.W.2d 335, the Court reversed the judgment of the trial court in so far as it pertained to the division of community property and affirmed that portion of the judgment granting divorce.

Appellant, Herbert Piro, sustained injuries during his marriage to appellee, which resulted in a suit for workmen's compensation benefits filed as Civil Action No. 11474 in the District Court of the United States for the Southern District of Texas, at Houston, Texas. On March 21, 1958, appellee filed a motion to intervene in said action. The motion was contested, but was granted by the court. Appellant's answer to the petition in intervention filed by appellee appears in the transcript, but the petition is not included.

On March 24, 1959, judgment was entered in favor of appellant.

An order overruling motion for new trial in said Civil Action, entered June 23, 1959, corrected the previously entered judgment and provided: 'Intervenor is denied all relief herein, and all relief not granted herein by the judgment entered March 24, 1959, and this modified order, is as to all parties herein specifically denied.'

Thereafter, by instrument dated July 30, 1959, entitled 'Satisfaction of Judgment' and filed among the papers of said Civil Action, Aetna Casualty and Surety Company admitted 'as now being undisputed' that appellant had his attorney were entitled to recover $1,741.35 for permanent partial incapacity (thereby modifying the court's judgment), but disputed the right to recover for temporary total disability and agreed with appellant and his attorney to settle that portion of the claim for $1,258.56, making a total settlement of $3,000, in consideration of which all claims against the company were released.

On the 28th day of March, 1960, this case was called for trial before the District Court of Harris County, at which time appellant filed and called to the attention of the court 'Defendant's Plea and Motion for Judgment' by which he 'moved the Court to deny Plaintiff Rosie Nell Piro further adjudication and litigation of her asserted claim to certain Workmen's Compensation benefits of Herbert Piro' in which he alleged the facts concerning appellee's intervention in the workmen's compensation suit and specifically pled the judgment in that suit as 'res judicata and judgment in bar' to the cause of action asserted herein. He further pled the judgment as an estoppel and an election of remedies. In the same instrument appellant pled that the court was without jurisdiction 'to pass upon, divide, assign, interfere with or adjudication the compensation claim of Herbert Piro because of the provisions of the Workmen's Compensation Act * * *'; that the court was without jurisdiction because appellee had presented her claim to the Industrial Accident Board and the trial court, both of which denied her relief. In connection with the motion appellant offered into evidence certified copies of the orders entered in the Federal court in the compensation case which, however, did not include a copy of the petition in intervention. The court denied the motion and admitted the evidence offered for the purpose of a bill of exceptions. Later the court admitted for all purposes the judgments in the compensation case and the pleadings and other orders previously amended only on the bill of exceptions.

On the 9th day of May, 1960, the trial court entered a judgment decreeing that the judgment of divorce entered on October 13, 1958, be amended and corrected so as to pertition the judgment awarded in the United States District Court by awarding Rosie Nell Piro the sum of $697.89 as her full interest 'in said judgment' and awarding the balance of the recovery to Herbert Piro. The judgment further provided that except for such correction the original divorce decree should remain 'in full force, effect and final, without change or modification on the question of divorce.'

Appellant first attacks the action of the trial court in refusing to sustain appellant's plea of (1) res judicata, (2) judgment in bar, (3) judgment by estoppel, (4) election of remedies, and (5) plea to jurisdiction of the court.

In Davis v. First Nat. Bank of Waco, 139 Tex. 36, 161 S.W.2d 467, 471, 144 A.L.R. 1, the court held:

'In determining whether a party to a suit is concluded by the decision of a question of fact or of law made in a former suit to which he or one through whom he holds title was a party, it is necessary not only to look to the terms of the judgment rendered in the former suit, but also to consider that judgment, its findings and recitals in the light of settled rules as to the principle of res adjudicata or conclusiveness of judgment. One of the best statements of the general principle is that contained in the opinion written by Justice Pitney in [State of] Oklahoma v. [State of] Texas, 256 U.S. 70, 41 S.Ct. 420, 422, 65 L.Ed. 831, 834. It is: 'A question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or action between parties sui juris is conclusively settled by the final judgment or decree therein so that it cannot be further litigated in a subsequent suit between the same parties or their privies whether the second suit be for the same or a different cause of action'. See, also, Stephenson v. Miller-Link Lumber Co., Tex.Com.App., 277 S.W. 1039.

'It is apparent from the use in the quoted rule of the words 'distinctly put in issue' and from other expressions in the court's opinion in [State of] Oklahoma v. [State of] Texas that consideration must be given to the pleadings in testing what was involved and determined in the former suit. In James v. James, 81 Tex. 373, 380, 16 S.W. 1087, 1089, it is said that: 'It is a general rule, having its foundation in sound reason, that the former judgment or litigation relied on as having adjudicated the matter, and as a bar to further proceedings, should have involved and determined the same vital issue, or that such issue, or question, should have been fairly within the scope of the pleadings.' (Our italics.) See, also, First National Bank of Bryan v. White, Tex.Civ.App., 91 S.W.2d 1120; 30 Am.Jur. pp. 927, 928 Sec. 182.'

It is necessary, therefore, to consider the intervention and answer in the Workmen's Compensation suit to determine the matters placed in issue. Since the petition in intervention was not introduced into evidence, we are not able to determine the issues made by the pleadings. Davis v. First Nat. Bank of Waco, supra, however, held that 'a judgment is not conclusive of a question which could not have been adjudicated in the case in which it was rendered' and that "* * * a party is concluded by a judgment in the right only in whch he sued or is sued."

The judgment of the United States District Court does not furnish in itself any indication of the questions determined. As a general rule the United States District Courts have no jurisdiction to determine matters involving...