Rylee v. Rylee

• Decision Date: 26 April 1926
• Docket Number: 25148
• Citation: 142 Miss. 832,108 So. 161
• Court: Mississippi Supreme Court
• Parties: RYLEE v. RYLEE. [*]

108 So. 161

142 Miss. 832

RYLEE v. RYLEE. ^[*]

No. 25148

Supreme Court of Mississippi

April 26, 1926

APPEAL from chancery court, Tallahatchie county, second district HON. C. L. LOMAX, Chancellor.

(In banc.)

1 DIVORCE. Bill for divorce on ground of desertion, not alleging change, of conditions since adjudication for defendant in prior suit on same ground, held subject to plea of res judicata.

Bill for divorce on ground of desertion, not alleging change of conditions since in prior suit on same ground it was adjudged defendant was not in fault in original separation, and was entitled to separate maintenance, is subject to plea of res judicata.

2 DIVORCE. Cause of action held stated by second bill for divorce for desertion, alleging bona-fide offers of reconciliation, refused by defendant, more than two years after adjudication for defendant in first suit.

Cause of action is stated by bill for divorce for desertion alleging that, subsequent to adjudication in prior suit on the same ground, defendant was not in fault, and was entitled to separate maintenance, and more than two years before bringing second suit complainant made repeated bona-fide offers of reconciliation, all of which were refused by defendant.

MCGOWEN J., dissenting.

HON. C. L. LOMAX, Chancellor.

APPEAL from chancery court, Tallahatchie county, second district, HON. C. L. LOMAX, Chancellor.

Suit for divorce by W. J. Rylee against Mrs, Imogene Rylee. Bill dismissed, and complainant appeals. Reversed and remanded.

Decree reversed and cause remanded.

J. J. Breland, for appellant.

I. The court below erred in sustaining the defendant's special plea of res adjudicata to complainant's original bill filed herein. The proceedings in the first suit are not res adjudicata of the appellant's present bill of complaint. The first bill sued the appellee for divorce on the ground of desertion for the two years next before the filing of the first bill, October 2, 1917, and the second bill is a suit for divorce against the appellee on the grounds of desertion for the two years next before the filing of the present bill, February 22, 1922.

In order for the first bill to be res adjudicata to the second suit, the parties in both suits must be the same, the subject matter of both suits the same, and the cause of action in both suits the same. See Adams v. Y. & M. V. R. R. Co., 77 Miss. 194, 24 So. 200. The parties were the same in both suits, and the subject matter was the same in both suits, but the cause of action was wholly different.

The test in this state as to whether one suit is res adjudicata of another suit is laid down by Chief Justice SMITH in Hardy v. O'Pry, 102 Miss. 197, 59 So. 73.

Where one suit for divorce has been denied, and where enough has occurred since rendition of first decree to entitle to relief, a divorce will be granted in the subsequent proceeding. See 9 R. C. L. 463, par. 276, citing Ford v. Ford, 25 Okla. 785, 108 P. 366; 27 L. R. A. (N. S.) 856.

It is a general rule, so far as we have been able to find, that when the wife leaves the husband because of the husband's mistreatment of her, when the husband reforms and this is brought to the attention of the wife and the husband has exhausted all reasonable efforts to right the wrongs and reasonably assures the injured spouse that there will be no recurrence of the cause which induced separation, then if she wilfully and obstinately refuses to return to the husband's domicile, this refusal on her part will constitute desertion. See Hill v. Hill, 62 Fla. 943, 56 So. 941, 39 L. R. A. (N. S.) 1117; Hanberry v. Hanberry, 29 Fla. 719; Carey v. Carey, 73 Cal. 630, 15 P. 313; Hooper v. Hooper, 34 N.J.Eq. (7 Stew.) 93; Stocking v. Stocking, 76 Minn. 292, 79 N.W. 172; Hall v. Hall, 65 N.J.Eq. 709; Lester v. Lester, 66 N.J.Eq. 434, 9 R. C. L. 273, sec. 161, 2 R. C. L. Sup. 788, par. 14, citing Roberson v. Roberson, 41 Nev. 276, 169 P. 33; Pitts v. Pitts, 91 Conn. 609, 101 A. 13, 4 A. L. R. 852. See Fulton v. Fulton, 36 Miss. 517, 2 Schuler Marriage, Divorce, Separation and Domestic Relations, secs. 1617 and 1630; Kunz v. Kunz (Minn.), 189 N.W. 447, 25 A. L. R. 1045.

II. The rule is well recognized that where the wife has obtained a decree of separate maintenance, then rejects her husband's offer of reconciliation made in good faith and refuses his request to return to him and continues such refusal for the statutory period of desertion, she herself is guilty of desertion and her husband is entitled to a divorce on this ground. 19 C. J., p. 67, sec. 126, see note 61, p. 68, citing Appleton v. Appleton, 97 Wash. 199, 166 P. 61, 66 Minn. 61. See, also, Kunz v. Kunz, 25 A. L. R. at pp. 1048-1049 and note. It was the duty of the appellee to return to her husband, the appellant, as soon as he sincerely repented for his wrong and reformed.

It was the opinion of the chancellor in the court below that once a bill for divorce on the ground of desertion had been dismissed, as was in the case of the appellant, no new statement of facts could arise in the future whereby the original complainant would be entitled to a divorce on the same ground. This proposition does not seem to have been passed upon by our court.

F. H. Montgomery, for appellee.

I. The plea res adjudicata was properly sustained. The decree in the former suit, which is pleaded in bar in this cause, judicially determined that the separation of the complainant and defendant on September 5, 1915, was not to be charged to the misconduct of the defendant. The answer and cross-bill in that case alleges that it was caused by the intolerable conduct and mistreatment of the defendant and the children of the complainant and defendant by the complainant. This was the sole issue so far as the bill of complaint in that cause is concerned. Therefore, the decree of the court in that case stands as an adjudication that the separation of the complainant and defendant was not caused by any misconduct upon the part of the defendant, but was attributable solely to the misconduct of the complainant. This decree in the former case is res adjudicata of all issues involved in that case. 9 R. C. L., p. 459, sec. 270.

If the parties separated on September 5, 1915, and have been continuously separated since that time, the separation is an entirety. If they had decided, after the decree in the first case, to resume marital relations and had for a time lived together and then another separation had occurred, there might be some logic in the contention of the complainant. But where the separation has been continuous since 1915 and the decree of the court in 1918 adjudicated that the separation was lawful so far as the defendant was concerned, it is difficult for me to perceive at what stage this continuous separation became unlawful upon the part of the defendant.

No overt act has been committed by the defendant since that time, but her conduct has merely maintained the status of the parties as it existed on that day. For these reasons we say that the plea of res adjudicata was a complete defense to the bill in this case and no replication having been filed to the same it was proper to dismiss the bill on this account.

II. The court below was correct in overruling complainant's motion to amend his original bill. When the courts sustained the sufficiency of the plea of res adjudicata, the complainant asked leave to amend his bill by alleging that since the decree of the court on June 8, 1918, the complainant had solicited the defendant to return to him, to live with him and re-establish the marital relation, and, therefore, upon the refusal of the defendant to accede to these requests, the defendant became the wrong-doer in the premises and her continued refusal to return to the complainant constitutes willful, continued and obstinate desertion and a just cause for divorce.

None of the cases cited touch the point in issue here. In none of them had there ever been a divorce proceeding between the parties and no adjudication of their cause by a court of competent jurisdiction. In the court below the defendant relied upon the decision of the supreme court of the United States in Harding v. Harding, 49 L.Ed. (U.S.) 1067. In that case every question in the case at bar was decided adversely to the contention of the complainant in this case.

III. Offer of reconciliation to be effective must have been made before rights of defendant accrued. It is universally held that in order for an offer of reconciliation to be effective to place the other spouse in the wrong and in the attitude of deserter, the offer of reconciliation must have been made before the statutory period had elapsed and the right of the deserted spouse had accrued.

There was a decree of the court entered more than two years after the separation, adjudging complainant to have been the wrongdoer and the separation of defendant from him to have been lawful. For that reason the proposed amendment did not help the cause of complainant and was properly disallowed by the court. 9 R. C. L., p. 373; Allen v. Allen, 84 A. S. R. at p. 138 and note. To the same effect see note to Hill v. Hill, 30 L. R. A. (N. S.) 1119; Benkert v. Benkert, 32 Cal. 1 467; Bovaird v. Bovaird, 78 Kan. 315, 96 P. 666.

Under our divorce statutes two years desertion gives the unoffending spouse the right to divorce. At the end of the two years the right accrues and is a vested right whether exercised or not.

Argued orally by J. J. Brelard, for appellant, and F. H. Montgomery, for appellee.

COOK, J. MCGOWEN, J., dissents.

OPINION

COOK, J.

On the 2d day of October, 1917, the appellant, W. J. Rylee, filed his bill for divorce against his wife, the appellee, alleging as a ground for divorce, willful, obstinate, and...