Smith v. Smith

• Decision Date: 03 March 1936
• Docket Number: No. 15099.,15099.
• Parties: SMITH v. SMITH.
• Court: Indiana Appellate Court

102 Ind.App. 431

200 N.E. 262

SMITH

v.SMITH.

No. 15099.

Appellate Court of Indiana, in Banc.

March 3, 1936.

Appeal from Hancock Circuit Court; Arthur Van Duyn, Judge.

Dissenting opinion.

*262For majority opinion, see 200 N.E. 90.

L. Ert Slack, of Indianapolis, for appellant.

Bates & Bates, of Indianapolis, for appellee.

KIME, Presiding Judge.

With the statement that, where there has been an adjudication and a final determination by a competent tribunal, the matter is considered forever at rest, I have no quarrel, but the dissension arises as to what was adjudicated in the first divorce suit. In the first suit filed by the husband, he alleged that his wife had abandoned him, and that, because she had abandoned him, he was entitled to a decree of divorce. To this complaint the wife filed an answer of general denial.

To determine what the court adjudicated it is necessary to first decide what the issue for his determination was, as presented by the pleadings.

“The word ‘issue,’ as used in law, is technical. It is the point in dispute between the parties, on which they put their cause to trial.” (Our italics.) Wolcott v. Wigton et al. (1855) 7 Ind. 44, at page 48.

It is then necessary for us to determine what was the “point in dispute” between husband and wife here. The husband by the allegations of his complaint says he is entitled to a divorce because of cruel and inhuman treatment. The wife by her general denial says. “No you are not entitled to a divorce because I have not been guilty of cruel and inhuman treatment toward you.” “The matter in issue” has been defined by this court adopting the language of a federal court (Smith v. Ontario) [C.C.] 4 F. 386) quoting a New Hampshire court (King v. Case, 15 N.H. 9) to be the “matter upon which the plaintiff proceeds by his action and which the defendant controverts by his pleading.” Bowen v. W. O. Eaton & Co. (1909) 46 Ind.App. 65, at page 75, 89 N.E. 961, 964. The issue is defined by and confined to the pleadings. Palmer v. Humiston (1913) 87 OhioSt. 401, 101 N.E. 283, 45 L.R.A. (N.S.) 640.

The answer of general denial puts the plaintiff “upon proof of all the material allegations of his complaint.” City of Lafayette v. Wortman (1886) 107 Ind. 404, at page 409, 8 N.E. 277, 279. Also Indianapolis, Decatur & W. R. Co. v. Center Township (1895) 143 Ind. 63, 40 N.E. 134;Pittsburgh, C., C. & St. L. R. Co. v. Fish (1902) 158 Ind. 525, at page 530, 63 N.E. 454. The burden is then upon the plaintiff to establish facts warranting his right to recover. Hubble v. Berry et al. (1913) 180 Ind. 513, 103 N.E. 328.

“The prime object of all litigation is to establish a right.” (Our italics.) Tyler v. Judges, etc. (1900) 179 U.S. 405, 21 S.Ct. 206, 207, 45 L.Ed. 252. Where there is a primary right and that right has been invaded, it gives to the one having the right the election of proceeding to enforce that right if in law or equity or by special statute there is a remedy provided by which it may be pursued to preserve to him the relief to which he is entitled. Here is where confusion first arises because courts have confounded causes of action with remedies. They are entirely different, separate, and distinct in many respects, and are different in principle and governed by other rules.

The “cause of action” should be distinguished not only from the “remedy” but also from the “relief” sought which is not part of the cause of action. 1 R.C.L., Actions, and cases cited.

“A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show.” Baltimore S. S. Co. v. Phillips (1927) 274 U.S. 316, 47 S.Ct. 600, 602, 71 L.Ed. 1069. The court in this case, quoting from the case of Chobanian v. Washburn Wire Co. (1911) 33 R.I. 289, 80 A. 394, 400, Ann.Cas.1913D, 730, said: “The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. ‘The thing, therefore, which in contemplation of law, as its cause, becomes a ground for action, is not the group of facts alleged in a declaration, bill, or indictment, but the result of these in a legal wrong, the existence of which, if true, they conclusively evince.”’

The Legislature of Indiana has said that one may expect to have a marriage exist until it is interrupted by true of eight enumerated grounds. When facts exist which *263establish that one of these grounds is prevalent, the injured party may repair to the court and file therein in the manner provided by statute, as those statutes have been interpreted by the courts, a complaint. Where the husband, believing that his primary right, namely, to have the marriage proceed uninterruptedly, had been violated by the abandonment by the wife, then pursued the remedy given to him by the Legislature, namely, filed his complaint for divorce because of abandonment in the proper court, thereby in effect saying that, because this right was violated and having pursued the remedy given me by the statute, if I establish the facts necessary to prove to the court that I have been abandoned, I am then entitled to the relief which the statute says is to be mine-a decree for divorce.

Plaintiff must proceed upon some definite theory, and the evidence introduced must support that theory. Wagner v. Winter (1890) 122 Ind. 57, 23 N.E. 754. The trial court should limit the inquiry and proof to the theory of the issue. Pittsburgh, etc., R. Co. v. James (1917) 64 Ind.App. 456, 114 N.E. 833.

The wife by filing her plea in bar as to cruel and inhuman treatment admitted that there existed in favor of the husband facts which would entitle him to a divorce, but contended that it should now bar him because it had been previously determined. Crum v. Yundt (1895) 12 Ind.App. 308, 40 N.E. 79. Since there was no demurrer to the first complaint, any objections thereto are waived. Indianapolis Street Ry. Co. v. Kane (1907) 169 Ind. 25, 80 N.E. 841, 81 N.E. 721.

The test of the identity of the cause of action is whether or not the same evidence would sustain both. If it would, they are identical, otherwise they are not. 15 R.C. L., Judgments, § 439; Freeman on Judgments, vol. 2, § 687.

“‘It is undoubtedly a settled question that a party seeking to enforce a claim legally or equitably must present to the court, either in pleading or in proof, or both, all the grounds upon which he expects a judgment in his favor. He is not at liberty to split up his demand, and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There would be no end to litigation if such a practice were permissible.’

“This statement, however, is qualified by the following: ***

“‘ But this principle does not require distinct causes of action-that is to say, distinct matters, each of which would authorize by itself independent relief-to be presented in a single suit, though they existed at the same time, and might be considered together.”’ United States v. The Haytian Republic (1894) 154 U.S. 118, 120, 14 S.Ct. 992, 994, 38 L.Ed. 930.

This precise question as applied to divorce cases has been determined to be that the adjudication of one ground or right as given by statute is not a bar to other grounds for divorce by Florida, Massachusetts, and New Hampshire. The Supreme Court of Florida applied the same test as we have in the instant case as to the identity of causes of action and arrived at the result in the following manner: “Where the second suit is upon the same cause of action and between the same parties as the first, the final judgment in the first suit upon the merits is conclusive in the second suit as to every question that was presented, or might have been presented, and determined in the first suit. When the second suit is upon a different cause of action, but between the same parties as the first the judgment in the first suit operates as an estoppel in the second suit only as to every point and question that was actually litigated and determined in the first, and the first judgment is not conclusive as to other matters that might have been, but were not, litigated or decided. The test of the identity of causes of action, for the purpose of determining the question of res judicata, is the identity of the facts essential to the maintenance of the actions. It is of the essence of estoppel by judgment that it be made certain that the precise facts were determined by the former judgment. If there is any uncertainty as to the matter formerly adjudicated, the burden of showing it with sufficient certainty, by the record or extrinsically, is upon the party who claims the benefit of the former judgment. Fulton v. Gesterding, 47 Fla. 150, 36 So. 56;Harrison v. Remington Paper Co., 3 L.R.A.(N.S.) 954, 72 C.C.A. 405, 140 F. 385, 5 Ann.Cas. 314;Rowell v. Smith, supra [123 Wis. 510, 102 N.W. 1];Draper v. Medlock, 122 Ga. 234, 69 L.R.A. 483, 50 S.E. 113, 2 Ann.Cas. 650;Russell v. Place, 94 U.S. 606, 24 L.Ed. 214;De Sollar v. Hanscome, 158 U.S. 216, text 221, 39 L.Ed. 956, 15 S.Ct. 816;*264Thompson v. N. T. Bushnell Co. (C.C.) 80 F. 332;Rogers v. Higgins, 57 Ill. 244.” Prall v. Prall (1909) 58 Fla. 496, 50 So. 867, 26 L.R.A. (N.S.) 577.

To constitute an estoppel by former judgment, the precise point which is to create the estoppel must have been put in issue and denied. Smith v. Sherwood, 4 Conn. 276, 10 Am.Dec. 143; Abbe v. Goodwin, 7 Conn. 377, 382; Citizens' Loan & Trust Co. of Washington, Ind. et al. v. Sanders et al. (1933) 99 Ind.App. 77...