Swanson v. Johnson

• Decision Date: 17 November 1947
• Docket Number: 4-8331
• Citation: 205 S.W.2d 702,212 Ark. 340
• Parties: Swanson v. Johnson
• Court: Arkansas Supreme Court

205 S.W.2d 702

212 Ark. 340

Swanson v. Johnson

No. 4-8331

Supreme Court of Arkansas

November 17, 1947

Appeal from Saline Circuit Court; Thomas E. Toler, Judge.

Affirmed.

Kenneth C. Coffelt, for appellant.

N A. McDaniel, for appellee.

OPINION

Holt J.

June 3, 1946, appellee brought this suit against appellant, her former husband, to replevin certain household goods and property which she claimed to own.

Appellant answered with a general denial and affirmatively pleaded res judicata as a complete defense.

On a jury trial, there was a finding in favor of appellee, and the following verdict returned: "We, the jury, find for the plaintiff and find that she is entitled to the possession of the following articles of property or the value as follows: 1 Bed Room Suite -- Value $ 50; 1 Dining Room Suite -- Value $ 50; 2 9 X 12 Rugs -- Value $ 40; 1 Coffee Table -- Value $ 10; 1 Electrolux Sweeper -- Value $ 50; 2 Bed Spreads -- Value $ 25; 6 Bed Quilts -- Value $ 30; 1 Floor Lamp -- Value $ 2; 1 Wine Chair -- Value $ 10; 1 Inner Spring Mattress -- Value $ 40. J. A. Miller, Foreman."

From the judgment comes this appeal.

After 20 years of married life, the parties here separated December 13, 1943, and appellee obtained a divorce January 20, 1944. Appellee, in her complaint for divorce, made no request for a property settlement. The decree of the trial court, evidently in compliance with § 4393 of Pope's Digest contained the following: "That all property not disposed of at the commencement of this action which either party hereto obtained from or through the other during the marriage hereby annulled, and in consideration or by reason thereof, be restored to them respectively."

Immediately following their separation and prior to the divorce decree, appellee testified that they had a property settlement and appellant gave her the property involved here. She further testified that she immediately removed this property from their home, along with an automobile and some other property not involved here. She had had possession of the property set out in the jury's verdict, supra, for approximately three years until she returned to appellant and carried it back to the home that she and appellant were occupying when they separated. She returned to appellant at his earnest solicitation and "he promised if I would come back, he would spend the rest of his life making up for what he had done," that she relied on his promise and "took the stuff and went back over there and I didn't any more than get in until the thing started and was pure hell until I left and when I left I was down sick" and was in bed for three weeks. He refused to let her have the property and placed a padlock and a notice on the door. "Q. You have been away with the property in your possession for about three years. A. Yes."

Appellee's sister, Buddy Mae Green testified that she was present when appellee and appellant separated, heard their conversation with reference to the property involved here, and that appellant told appellee she could have it, and fully corroborated appellee. Appellant denied that he gave her the property and claimed ownership.

Appellee has remarried since her divorce from appellant.

It is conceded that the property rights of the parties here were not settled by the divorce decree, supra, and that decree did not determine appellee's rights in the property here. Whether appellant gave her the property and that she has owned it since their separation was a question for the jury to determine, and while appellant denies that he gave her the property and that she owned it, the jury refused to accept his version of the matter and we think there was ample evidence upon which the jury based its verdict.

The record reflects that subsequent to the divorce decree, appellant sued appellee to replevin the automobile, supra, which appellee had carried away with her following their separation, and that appellant was successful in that suit. The only property involved in that action was an automobile. None of the property here was involved. See Johnson v. Swanson, 209 Ark. 144, 189 S.W.2d 803.

Appellant says: "The law of res judicata applies in the case at bar." Appellee "is barred in the instant case because when she filed her former suit for divorce she failed to ask for a division of property, and she was the one who was then doing the suing." We cannot agree that the doctrine of res judicata has any application in the present case.

"To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must appear from the record, or from extrinsic evidence, that the particular matter sought to be concluded was raised and determined in the prior suit, or that it might have been litigated in that case." Coleman v. Mitchell, 172 Ark. 619, 290 S.W. 64.

It is undisputed that the issue as to...