Wagner v. Wagner
| Decision Date | 21 December 1886 |
| Parties | AMELIA WAGNER <I>vs.</I> FRANK WAGNER. |
| Court | Minnesota Supreme Court |
C. H. Benton, for appellant.
Robinson & Baker, for respondent.
In June, 1884, plaintiff left the bed and board of defendant, and brought an action against him for a divorce from the bonds of matrimony, on the alleged ground of cruel and inhuman treatment. The action was tried, and judgment rendered against plaintiff, December, 1884. The judgment is not contained in the record, but it appears that the action was tried and submitted on the merits, and findings of fact adverse to plaintiff made and filed, with an order "that the action be dismissed," and "that judgment be entered accordingly," which was done. This would be a judgment on the merits. 2 Bish. Mar. & Div. § 766; Freem. Judgm. § 313.
In June, 1885, plaintiff brought the present action for a limited divorce, on the grounds of cruel and inhuman treatment by defendant, and such conduct on part of defendant towards plaintiff as rendered it unsafe and improper for her to cohabit with him. As to all facts alleged as cruel and inhuman treatment prior to June, 1884, defendant pleaded the judgment in the former action in bar. On the trial the plaintiff offered to prove that on the night before she left defendant, (and prior to the commencement of the former action,) he violently choked and otherwise assaulted her. The exclusion of this evidence is now assigned as error. This presents the question whether, after judgment upon the merits against her in an action brought by a wife for absolute divorce on the ground of cruel and inhuman treatment by her husband, she can maintain an action for limited divorce on the same grounds which constituted her cause of action in the first suit, or whether the judgment in the first is a bar to the second. We apprehend this depends upon whether, in the first action, the plaintiff might have obtained the relief prayed for in the second. Although our statute relating to absolute divorces, and that relating to limited divorces, are two separate acts, yet the proceedings under both are to be commenced and conducted in the same manner. Gen. St. 1878, c. 62, § 34. The formal allegations required in the complaint in the first, include everything that is required in the complaint in the latter. Cruel and inhuman treatment, as a cause for divorce, is common to both. The two actions are intimately related to each other. The relief asked for in an action for absolute divorce may be said to include the relief asked for in an action for limited divorce, in the same sense in which the whole includes the part. They seek for different degrees of change in the marriage relation, and concern the same subject-matter. Fera v. Fera, 98 Mass. 155.
In those states where the same grounds are cause for either kind of divorce, it is often left to the discretion of the court, upon the trial, which kind shall be granted. In some jurisdictions it is the practice to state in the same complaint one cause of action for absolute divorce, and another for a limited one, and put the prayer for relief in the alternative, and upon the trial the court will grant the one or the other, according to the proof. Young v. Young, 4 Mass. 430.
We see no good reason why, in an action for an absolute divorce on the grounds of cruel and inhuman treatment, the wife might not obtain a separation from bed and board, if the evidence warrants it. We apprehend that there might be cases in which a court would, in the exercise of a sound judicial discretion, grant a separation from bed and board on account of cruel and inhuman treatment of the wife, when it would not grant an absolute divorce; and if the wife desires the limited in case she cannot obtain the absolute divorce, she ought to make her prayer for relief in the alternative. The doctrine that what is once litigated to final judgment cannot be retried between the same parties, governs divorce equally as other civil actions. If a plaintiff fails to obtain the relief which she asks for, she ought not to be permitted to bring a second suit on the same cause of action for a part of that relief, when she might have obtained this partial relief in the first action.
The judgment in the first action was a bar to any new application for a...
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