Smith v. Smith

Decision Date07 June 1905
Docket Number5,400
Citation74 N.E. 1008,35 Ind.App. 610
CourtIndiana Appellate Court

From Hamilton Circuit Court; Ira W. Christian, Judge.

Action by Minnie B. Smith against Aaron H. Smith. From a decree for plaintiff, defendant appeals.


Shirts & Fertig, T. J. Terhune and A. C. Pearson, for appellant.

Kane & Kane, for appellee.



This is an action by the wife (appellee) against her husband (appellant) for separate support of herself and their two children, aged seven and five years respectively. This cause is based upon § 6977 et seq. Burns 1901, § 5132 et seq. R. S. 1881. The complaint declares upon the third clause of § 6977, supra, and substantially complies with § 6978, supra,

1. In the form in which the record comes to this court, the sufficiency of the complaint is here for the first time the subject of attack for want of facts. The objections stated are: (1) That it does not aver the desertion without cause (2) "the neglect to provide, by reason of drunkenness is not shown to have continued for any length of time, being laid simply in the present tense, and followed by the averment that appellant had not furnished appellee with any aid since January 26, 1904." With all reasonable presumptions and intendments in favor of the pleading, no one will say that it does not contain facts enough to bar another action, or affirm that it totally fails to state a material fact absolutely necessary to the right of recovery. And yet such must be the weakness of the complaint, or the defects therein, if any, will be cured by the verdict and judgment. Peoria, etc., R. Co. v. Attica, etc., R. Co. (1900), 154 Ind. 218, 56 N.E. 210; City of South Bend v. Turner (1901), 156 Ind. 418, 54 L. R. A. 396, 83 Am. St. 200, 60 N.E. 271; Xenia Real Estate Co. v. Macy (1897), 147 Ind. 568, 47 N.E. 147; Walter v. Walter (1889), 117 Ind. 247, 20 N.E. 148; Brandis v. Grissom (1901), 26 Ind.App. 661, 60 N.E. 455. The complaint is sufficient to withstand the objections urged against it. Harris v. Harris (1885), 101 Ind. 498; Burkett v. Holman (1885), 104 Ind. 6, 3 N.E. 406.

To the complaint an answer was filed in three paragraphs. The first, a general denial. As to the facts averred in the second and third paragraphs, we take appellant's statement as follows: "The second paragraph admits the marriage, the birth of children, and the ownership of property alleged in the complaint, but further alleges that on June 24, 1903, appellee sued appellant in the same court for divorce and alimony, alleging in her complaint the marriage, cohabitation and the birth of the children; also appellant's ownership of property, as in the present complaint; also that appellant had deserted appellee and her children, and had not made provision for their support; that appellant was an habitual drunkard, and had treated appellee in a cruel and inhuman manner, and had continuously cursed, abused and otherwise mistreated her, so that she had been compelled to leave him and live separate and apart from him; that she was in destitute circumstances, and without means to employ counsel; that the prayer was for divorce, the custody of said children, and for $ 5,000 alimony; and that all the allegations against appellant in the present complaint are the same allegations and charges as contained in the former complaint; that appellant joined issue by general denial; that the cause was tried before the court in January, 1904, and after hearing all the evidence the court found for appellant, and gave judgment in his favor against the appellee that all and singular the said allegations and charges were untrue, and that she take nothing by her complaint, and that the petition for divorce be wholly denied; that said judgment remained in full force and effect; that appellee was thereby debarred and precluded from maintaining this action; and that all matters charged in the complaint and every issue thereby tendered had been by said previous judgment fully adjudicated and set at rest.

"The third paragraph of answer is like the second, except that it sets up the former suit and judgment as a bar to the maintenance of the present action on account of any act or omission alleged against the appellant as having occurred prior to the 24th day of June, 1903. The allegations as to the issues and trial of the former suit are the same as in the second paragraph, with the additional averment that appellee applied for and obtained before the trial an allowance for her support, pending the action, which appellant paid, and that on rendering final judgment denying the divorce the court ordered appellant to pay the costs and appellee's counsel fees, all of which he paid, amounting to $ 800. It is further alleged in the third paragraph that appellant has not been intoxicated since the bringing of the said action for divorce, and that he has not deserted, nor in any manner mistreated, the appellee since said date, but alleges the fact to be that appellee has lived apart from appellant, since bringing said action for divorce, of her own free will and accord, and without cause, and that she has never offered to return to the home of appellant nor asked him for any support or money since the former trial and judgment."

2. Separate demurrers to the second and third paragraphs of answer being sustained, this ruling of the court is here assigned as error. The question therefore is, did each of the paragraphs of appellant's answer, separately considered, state facts sufficient to constitute a good answer of res judicata?

The court in the case of Kitts v. Willson (1894), 140 Ind. 604, 39 N.E. 313, said: "Before the rule of former adjudication can be invoked it must appear that the thing demanded was the same; that the demand was founded upon the same cause of action; that it was between the same parties, and found for one of them against the other in the same quality. The party must not only be the same person, but he must also be suing in the same right. Jones v. Vert [1889], 121 Ind. 140, 22 N.E. 882; Whitney v. Marshall [1894], 138 Ind. 472, 37 N.E. 964, and authorities cited in those cases."

The doctrine of former adjudication rests upon the firmly settled principle of law, that an action prosecuted to judgment in a court having jurisdiction of the parties and of the subject-matter, upon the merits, as between the parties thereto, without appeal, is a finality as to all issues actually made and facts proved and passed upon, and in certain cases may extend to such issues or facts as might properly have been made and decided in that action. Parker v. Obenchain (1895), 140 Ind. 211, 39 N.E. 869; McFadden v. Ross (1886), 108 Ind. 512, 8 N.E. 161; Crum v. Rea (1896), 14 Ind.App. 379, 42 N.E. 1033; Black, Judgments, § 504.

3. We can not agree with appellant that the proceedings had in the divorce action instituted by appellant on June 24, 1903, as averred in the second and third paragraphs of answer, were sufficient to bar a recovery in the action now before the court. The gist of that action, as it appears from appellant's answers herein, was whether at that time there existed grounds for a divorce; the question of alimony is incidental to the divorce, and is granted only in case of a decree for a divorce. Moon v. Baum (1877), 58 Ind. 194.

The averments of the answers show that the same facts and grounds for this action were in issue in the action for a divorce; that the issues then pending before the court were decided adversely to appellee, and admit that the parties to this action are still husband and wife. A complete answer to appellant's contention is found in the statement of this court in the case of Carr v. Carr (1893), 6 Ind.App. 377, 33 N.E. 805: "The obligation of a husband to support his wife and infant children is a continuing one, and lasts so long as the relation exists. The purpose of this action is not to recover for past support, but for present and future maintenance. * * * The statute, §§ 5134, 5135 R. S. 1881, in speaking of the judgment for support and maintenance, calls it alimony. The word alimony is here used in its primary sense of nourishment, sustenance, means of living. The effort here is to obtain nourishment and means of sustenance for the present and future."

In a divorce proceeding the effect of a decree for alimony is an adjustment of all property rights between the parties. Walker v. Walker (1898), 150 Ind. 317, 50 N.E. 68; Hilbish v. Hattle (1896), 145 Ind. 59, 33 L. R. A. 783, 44 N.E. 20; Murray v. Murray (1899), 153 Ind. 14, 53 N.E. 946.

In the first proceedings the relief demanded was a divorce, which carried with it, as incidental thereto, the adjustment of their property rights, only in case the divorce was granted. The only grounds for divorce charged were cruel treatment and habitual drunkenness. If the averment of desertion amounted to anything at all, it was in connection with the charge of cruel treatment. No more can be said of it. Actions for divorce as well as actions for support are statutory, yet each is based on entirely different statutes. A strictly statutory provision authorizing the one is insufficient upon which to base the other, and, as applied to the case at bar, each paragraph of answer is insufficient, in that it does not show that the relief demanded is the same, that the demand is founded upon the same cause of action, and that the actions are in the same right. Kitts v. Willson, supra.

4. That there was no intoxication of appellant; that there was no desertion or mistreatment of appellee by appellant; that appellee has lived separate and apart from appellant of her own will and without cause, and that appellee never offered to return to the home of appellant nor asked him for any...

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