Rogers v. Rogers

• Citation: 42 Idaho 158,243 P. 655
• Parties: JOSEPH PHILIP ROGERS, Appellant, v. ALICE NETTIE ROGERS, Respondent
• Decision Date: 04 February 1926
• Court: United States State Supreme Court of Idaho

243 P. 655

42 Idaho 158

JOSEPH PHILIP ROGERS, Appellant, v. ALICE NETTIE ROGERS, Respondent

Supreme Court of Idaho

February 4, 1926

DIVORCE-RES ADJUDICATA-QUIETING TITLE-EFFECT OF PLEADINGS-STATUTE OF LIMITATIONS-FAILURE OF PROOF.

1. Decree in suit for divorce that plaintiff take nothing by his action, and for divorce for defendant on her cross-complaint is not res judicata of right to property, conveyance of which plaintiff sought to set aside in subsequent action, where provision respecting property was eliminated on first appeal.

2. The identical issue must have been raised and determined in a former suit for its decree to be res judicata of question raised in subsequent action.

3. Even if answer or cross-complaint of defendant in action to quiet title be extant after dismissal of plaintiff's complaint title may not be quieted in defendant without proof of her title.

4. Decree erroneously dismissing complaint on the ground of res judicata, without allowing plaintiff to introduce evidence may not be affirmed on the ground of bar of limitations; it being impossible to apply the statute (C. S secs. 6596, 6597, 6608, 6611, 6617) to some of the issues raised by the pleadings without evidence relative thereto, of which there was none.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. F. McNaughton, Judge.

Action to quiet title. Judgment for respondent. Reversed and remanded.

Reversed and remanded. Costs awarded to appellant.

James F. Ailshie, for Appellant.

There was no element of former adjudication shown in this case. (Rogers v. Rogers, 35 Idaho 645, 650, 208 P. 234.)

In order to have an estoppel by a previous adjudication it is not only necessary that the same subject matter should have been at issue but it is also necessary that it should have been litigated upon the trial and the issue determined by the judgment. (2 Black on Judgments, sec. 617; Russell v. Place, 94 U.S. 606, 24 L.Ed. 214; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195; Freeman on Judgments, sec. 253.)

James A. Wayne, for Respondent.

The case of Rogers v. Rogers, 35 Idaho 645, 208 P. 234, adjudicated all of the facts and issues presented by the complaint in the present action, and the judgment in that case is a bar to the present action. (Hilton v. Stewart, 15 Idaho 150, 128 Am. St. 48, 96 P. 579.)

Every right, every fact, and every matter in issue, judicially passed upon in a former action, is res adjudicata in a subsequent action, between the same parties involving the same right, fact or matter in issue. (Neil v. Hyde, 32 Idaho 576, 186 P. 710.)

A judgment in a former action between the same parties constitutes a bar both as to matters which were actually litigated and also as to all matters which might or could have been litigated between such parties in the former suit. (Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195; Carr v. Carr Co., 39 Cal.App. 53, 177 P. 856; Allen v. Allen, 159 Cal. 197, 113 P. 160.)

GIVENS, J. William A. Lee, C. J., and Wm. E. Lee, Budge and Taylor, JJ., concur.

OPINION

GIVENS, J.

Appellant previously brought an action for divorce and to cancel certain deeds given by him to his wife; the wife resisted such action and affirmatively set up a cause of action for divorce. The court denied appellant any relief, granted the wife a divorce and decreed the property covered by the deeds in question to the wife. On appeal, Rogers v. Rogers, 35 Idaho 645, 208 P. 234, the decree was modified on the ground that the wife had not asked that the property rights be settled and therefore the lower court was without jurisdiction to pass upon the same.

Appellant then brought this action to cancel the same conveyances above referred to, to restore the property to him and to quiet his title thereto.

Respondent answered and filed a cross-complaint asking that the court quiet her title to the property; appellant then answered respondent's cross-complaint, denying respondent's title and incorporating paragraphs 1 to 8, inclusive, of his complaint in such answer, which paragraphs set up the conveyances to respondent and the fraud which he claims she practiced in securing the deeds from him, and prayed that respondent take nothing and that he have the relief prayed for in his complaint.

In Rogers v. Rogers, supra, the court said:

"The court decreed that appellant take nothing by his action and entered a decree of divorce for respondent and awarded to her the custody of her minor child. . . . Appellant's action having been dismissed the court was not authorized to make any decree relative to property rights based upon his complaint. . . . Respondent in her cross-complaint made no mention of property rights and asked no relief with reference thereto. We think the court was without jurisdiction to include in the decree a judgment in effect quieting her title to the property. The court cannot go beyond the issues and pass upon a matter which the parties neither submitted nor intended to submit to its determination."

Appellant had raised the question of property rights claiming title in himself. All the evidence showed that either he or his wife had title. The trial court decreed that the property belonged to the wife, which decree this court set aside. The former decision held that appellant should receive nothing and if it meant that in receiving nothing his rights to the property were adjudicated adversely to him, title would necessarily have been in the wife, and therefore there would have been no occasion to say that the trial court had erroneously given her the title. It is thus apparent that in the former action nothing was adjudicated but that respondent was entitled to a divorce.

Identity of issue is one of the essentials of res adjudicata, and it must appear that the precise question was raised and determined in the former suit. (Wood River Power Co. v. Arkoosh, 37 Idaho 348, 215 P. 975; Mason v. Ruby, 35 Idaho 157, 204 P. 1071; Berlin Machine Works v. Delbohm L. Co., 29 Idaho 494, 160 P. 746; Marshall v. Underwood, 38 Idaho 464, 221 P. 1105.)

During the course of the trial, after certain preliminary questions identifying the property and showing where it was located and its value had been propounded to the plaintiff, appellant offered a certified copy of one of the deeds from him to his wife and upon objection by respondent that the cause of action based upon the instrument had been adjudicated in the previous case and was also barred by the statutes of limitations, the trial court at respondent's request and over appellant's objection received the entire record on appeal in the previous case. The appellant then sought to prove the respective allegations of his complaint bearing upon respondent's fraud, whereby she obtained the deeds in question, which offers being severally objected to, were, by the court, refused on the...