La Rue v. Kempf

• Decision Date: 08 December 1914
• Docket Number: No. 13792.,13792.
• Citation: 171 S.W. 588,186 Mo. App. 57
• Parties: LA RUE v. KEMPF.
• Court: Missouri Court of Appeals

171 S.W. 588

186 Mo. A. 57

LA RUE v. KEMPF.

No. 13792.

St. Louis Court of Appeals. Missouri.

December 8, 1914.

Rehearing Denied December 22, 1914.

1. DIVORCE (§ 323) — SUPPORT OF CHILDREN — LIABILITY OF FATHER — MAINTENANCE.

In the absence of a provision made for the support of minor children, the father continues primarily liable therefor after divorce, and the mother, having their custody, may ordinarily recover from him for their maintenance, if he fails or refuses to furnish it.

2. DIVORCE (§ 323) — SUPPORT OF CHILDREN — LIABILITY OF FATHER — PROVISION.

Where, in connection with divorce proceedings, a settlement is made between the parents, whereby the father makes provision for the future support of minor children, which is accepted by the mother as satisfactory, he is no longer liable in an action by her for their support furnished by her.

3. DIVORCE (§ 324) — SUPPORT OF MINOR CHILDREN — ACTION FOR MAINTENANCE — DEFENSES.

In an action by a divorced wife to recover from her former husband for the support of their minor children, whose custody had been awarded to her, the fact that he had repeatedly offered to take the children himself and support them was no defense to the action; and her refusal to permit him to take them did not justify his refusal to provide for their maintenance.

4. JUDGMENT (§§ 540, 713) — FORMER ADJUDICATION — EFFECT OF JUDGMENT AS BAR.

A judgment upon the merits is an absolute bar to a subsequent suit on the same claim or demand, and concludes the parties and their privies, not only as to every matter offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.

5. JUDGMENT (§ 735) — FORMER ADJUDICATION — ESTOPPEL — IDENTITY OF ISSUES.

Where a second action between the same parties is upon a different claim or demand, the former judgment is an estoppel only as to the matters in issue or points controverted, upon the determination of which the finding or verdict was rendered, so that, where it is sought to apply the estoppel of a judgment, the inquiry always is as to the matters actually litigated and determined in the former action, and not the matters that might have been litigated and determined.

6. JUDGMENT (§§ 735, 741) — CONCLUSIVENESS — INCIDENTAL AND COLLATERAL MATTERS.

The judgment of a court of concurrent or exclusive jurisdiction is not evidence of any matter which came collaterally in question, though within its jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.

7. JUDGMENT (§ 713) — "RES ADJUDICATA" — THEORY.

The doctrine of "res adjudicata" or former adjudication goes upon the theory, on the one hand, that it is to the interest of the state that there should be an end of litigation, and, on the other hand, that the individual shall not be twice vexed for the same cause; the estoppel raised being in the nature of an estoppel by verdict.

8. JUDGMENT (§ 951) — RES JUDICATA — MATTERS DETERMINED — PAROL EVIDENCE.

Where the record, in a former action, does not show what questions were determined therein, that may be shown by extrinsic parol evidence.

9. JUDGMENT (§ 744) — CONCLUSIVENESS — MAINTENANCE OF CHILDREN — QUESTION OF LAW OR FACT.

In an action by a divorced wife, who had been awarded the custody of minor children, to recover from her former husband for their maintenance for ten years, defended on the ground that he was released from liability by an agreement under which he had paid her a sum of money in satisfaction of his liability for their maintenance, judgment for defendant in a former suit by plaintiff to recover on an account for their maintenance for 13 months, in which defendant pleaded the same agreement as a release, was, as a matter of law, an estoppel to the subsequent action; and it was error to leave it to the jury to say whether the same questions were presented and submitted in the former action.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Alice La Rue against Paul Kempf. Judgment for defendant, and plaintiff appeals. Affirmed.

H. C. Whitehill, of St. Louis, for appellant. Schnurmacher & Rassieur, of St. Louis, for respondent.

ALLEN, J.

This is an action whereby plaintiff seeks to recover from her former husband for the support and maintenance of two minor children of plaintiff and defendant, alleged to have been provided by plaintiff during the period from October 1, 1900, to October 1, 1910. The cause was tried before the court and a jury, resulting in a verdict and judgment for the defendant, and the plaintiff appeals.

The petition alleges that the plaintiff and defendant were married in 1896, and lived together as husband and wife until on or about December 24, 1898, during which time there were born of the marriage two children. It is alleged that the defendant abandoned plaintiff and said minor children on or about December 24, 1898, and took up his residence in the state of North Dakota, where, on September 1, 1899, he obtained a decree of divorce from plaintiff, by the terms of which decree plaintiff (defendant in the divorce proceeding) was awarded the custody and control of said minor children. And it is averred that from October 1, 1900, to October 1, 1910, the defendant neglected and refused to provide for said minor children, or either of them, except that he furnished plaintiff approximately $200 on account thereof; that plaintiff provided for their support and maintenance, the reasonable value thereof being $50 per month, a total of $6,000. And judgment is prayed for the sum of $5,800.

The answer denies that defendant abandoned plaintiff or said minor children, but admits that he took up his residence in the state of North Dakota, where he obtained a decree of divorce from plaintiff, as alleged by her. The answer further denies that defendant neglected and refused, during the period in question, to provide for said minor children, and avers that he expended certain sums of money for their support during such time. And it is alleged that defendant repeatedly offered to take said children and rear them, but that plaintiff refused to permit him so to do. The answer further avers that, at the time of the divorce proceedings in North Dakota, defendant paid to plaintiff the sum of $4,500 for the maintenance and support of herself and said minor children, during the latter's minority, which plaintiff accepted and received and for a suitable and satisfactory provision thereof. The answer then alleges that on October 3, 1900, plaintiff instituted against defendant an action before a justice of the peace in the city of St. Louis to recover $500 for the support and maintenance of said children from September 1, 1899, to October 1, 1900; that in said action judgment was rendered by the justice of the peace in favor of defendant; that plaintiff thereupon prosecuted an appeal to the circuit court of the city of St. Louis, where, upon a trial de novo, judgment was again rendered for defendant, from which no appeal was prosecuted. And it is averred that the same identical issues were involved in said former suit as are involved herein; and defendant pleads said judgment "as a determination and adjudication of the question of his liability to plaintiff for the support of said minor children, and pleads the same as a former adjudication and in bar of this action."

The evidence discloses that plaintiff retained counsel to represent her in said divorce proceedings, and filed an answer therein which, however, was afterwards withdrawn. It appears that the sum of $4,000 was paid by defendant to counsel representing plaintiff in the North Dakota court; and defendant testified that he permitted plaintiff to retain the proceeds of the sale of certain household furniture amounting to $500, and that, prior to the hearing of the divorce suit, an agreement was entered into between counsel representing plaintiff and defendant, respectively, therein, evidenced by a stipulation filed in court, and which the court evidently considered in entering its decree. By this stipulation it was agreed that the charge of adultery made against plaintiff (defendant in said action) would be withdrawn, and that the suit would proceed, if at all, upon other grounds set forth in the complaint, and that plaintiff (defendant there) should have the care and custody of the two children born of the marriage. By the stipulation it was further agreed:

"That the plaintiff (defendant here) has made suitable and satisfactory provision for the maintenance and support of the defendant (this plaintiff) and said minor children."

The decree entered in the divorce suit on September 1, 1899, merely grants this defendant a divorce, and awards to this plaintiff the custody and control of said minor children.

On October 1, 1900, plaintiff, who in the meantime had married one La Rue, instituted an action before a justice of the peace in the city of St. Louis to recover the sum of $500 as for moneys expended by her from September 1, 1899, to October 1, 1900, for the support and maintenance of said minor children, as is alleged in the answer. The suit was based upon an account filed. The defendant appeared in the action, and judgment was rendered in his favor. Thereupon plaintiff prosecuted an appeal to the circuit court of said city, where the cause was tried de novo before the court without a jury, and at the conclusion of the trial the court gave a declaration of law to the effect that plaintiff could not recover; and, plaintiff not taking a nonsuit, judgment was entered for defendant, from which no appeal was prosecuted.

Plaintiff denied having taken an appeal from the judgment of the justice of the peace, in the former action, and denied that she appeared and testified therein in the circuit court, though the affidavit for appeal appears to have been made by her, and the cause was...