Tobias v. Tobias, 39789
| Decision Date | 21 November 1955 |
| Docket Number | No. 39789,39789 |
| Citation | 83 So.2d 638,225 Miss. 392 |
| Parties | Mrs. Audrey Lynn Jones TOBIAS v. M. H. TOBIAS, Sr. |
| Court | Mississippi Supreme Court |
Brandon, Brandon, Hornsby & Handy, Natchez, Crisler, Crisler & Bowling, Jackson, for appellant.
Young & Daniel, Jackson, for appellee.
Mrs. Audrey Lynn Jones Tobias, on September 13, 1954, filed in the Chancery Court of the First Judicial District of Hinds County a bill of complaint against her husband, M. H. Tobias, Sr., in which she sought (1) to establish a resulting trust in connection with her husband's alleged purchase of certain property with her funds; (2) to recover divers and sundry sums of money which she claimed that her husband had converted to his own use; and (3) to recover $8,000, the amount of a loan which she had made to him, and which was evidenced by his promissory note. There was a prayer for discovery and the award of a judgment in the amount of her husband's indebtedness to her.
The answer of the defendant denied the material allegations of the bill and set up, as a special defense, that a previous suit between the same parties had adjudicated their respective rights, and that the final decree in that cause, of date July 30, 1954, was res judicata of the rights between the parties as to the matters alleged in the bill of complaint. The special defense of res judicata was sustained, the bill of complaint was dismissed, and Mrs. Tobias appealed.
A review of the proceedings in the first cause is necessary.
The original pleadings, a transcript of the evidence which was offered therein, and the final decree were introduced on the hearing of the plea of res judicata. Mrs. Tobias had initiated that cause by a petition solely for the care, custody and support of the two minor children by the marriage, and separate support for herself. There was no allegation as to debt or any prayer for recovery on that account. Mr. Tobias, by his answer, denied the material allegations of the petition, and made his answer a cross bill in which he prayed for the custody of the children and for a divorce on grounds of habitual drunkenness of his wife and her alleged habitually cruel and inhuman treatment of him.
In that trial, Mrs. Tobias testified that, over a five-year period from the first part of 1949 until the last part of 1953, she had contributed approximately $92,000 to her husband's business or upkeep and for the upkeep or expenses of the family. Her evidence was of course admissible, on the question of the care and custody of the children, to show her financial ability to take care of them, if they were awarded to her, and his financial inability, if they were awarded to him. That evidence also cut both ways, because it indicated that Mrs. Tobias was a woman of substantial means, and, for that reason, did not need separate support from her husband; and besides, that her husband would not likely be able to comply with the terms of a decree, if a sum for separate maintenance should be adjudged against him.
The decree of July 30, 1954, in that suit, simply denied the relief which Mrs. Tobias prayed for, namely, custody and support of the minors and separate maintenance for herself; and denied Mr. Tobias' prayer for a divorce on his cross bill, but awarded the custody of the children to him. Thus there was no adjudication whatever as to the rights involved in the present litigation.
The denial to Mrs. Tobias of separate maintenance and the custody of the children in no way invalidated claims for debt, which she may have against her husband as a result of contract, either express or implied.
'Married women are fully emancipated from all disability on account of coverture; * * *'. Section 451, Code of 1942. While husband and wife may not sue each other for torts, Ensminger v. Ensminger, Miss., 77 So.2d 308, they may do so in respect to their property rights. Section 452, Code of 1942; Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A.L.R. 1388.
Moreover, the essentials necessary to constitute res judicata are: '(1) identity in the thing sued for; (2) identity in the cause of action; (3) identity of persons and parties to the action; and (4)...
To continue reading
Request your trial
-
Burns v. Burns, 56500
...May, 229 Miss. 97, 90 So.2d 169 (1956), but they may not sue each other for tortious injury, negligent or intentional. Tobias v. Tobias, 225 Miss. 392, 83 So.2d 638 (1955); Ensminger v. Ensminger, 222 Miss. 799, 77 So.2d 308 (1955) (wife who was injured when husband negligently drove automo......
-
Fidelity & Cas. Co. of N. Y. v. State Bldg. Commission
...or a common-law obligation. Cf. Davidson v. Hunsicker, Miss., 80 So.2d 834; Perkins v. Watson, 92 Miss. 452, 46 So. 80. In Tobias v. Tobias, Miss., 83 So.2d 638, 639, the Court said: 'Moreover, the essentials necessary to constitute res judicata are: '(1) identity in the thing sued for; (2)......
-
Superior Oil Co. v. Magee
...Since the parties and the real controversy were the same in both instances, I think that res judicata ought to be applied. Tobias v. Tobias, Miss., 83 So.2d 638, and auhorities there Being of the above opinion, I do not think that Humble Oil & Refining Co. v. Hutchins, 217 Miss. 636, 64 So.......
-
McNeal v. Administrator of McNeal's Estate
...168 Miss. 439, 151 So. 551 (1934), (a wife sued her husband for injury from negligent operation of automobile). In Tobias v. Tobias, 225 Miss. 392, 83 So.2d 638 (1955), the Court pointed out that although a wife could not sue her husband in tort, she could sue him on a Our holding has been ......