Wolford v. Wolford

• Decision Date: 22 December 1948
• Docket Number: 3550.
• Citation: 200 P.2d 988,65 Nev. 710
• Parties: WOLFORD v. WOLFORD.
• Court: Nevada Supreme Court

200 P.2d 988

65 Nev. 710

WOLFORD v. WOLFORD.

No. 3550.

Supreme Court of Nevada

December 22, 1948

Appeal from District Court, Fourth District, Elko County; Taylor H Wines, Judge.

Action for partition of realty by Albert Wolford against Ethel M Wolford. From the judgment, the defendant appeals.

Affirmed.

Orville R. Wilson, of Elko, and D. H. Oliver, of Salt Lake City, Utah, for appellant.

George F. Wright, of Elko, for respondent.

EATHER Chief Justice.

Respondent as plaintiff in the trial court, was granted a partition of real property and the property was ordered to be sold through referees pursuant to the laws pertaining to executions. Plaintiff and defendant were co-owners, as tenants in common of said property.

In her appeal, appellant contends:

(1) That prior to this action, plaintiff was awarded an annulment of his marriage to defendant and was awarded an undivided one-half interest in the real property acquired by the parties during their marriage, with the defendant owning the other one-half interest. The court did not partition the property. Appellant contends that this is res adjudicata and plaintiff is barred from a subsequent action for partition.

(2) That appellant was denied equal protection of the law.

(3) Appellant's property was taken without due process of law.

(4) The evidence is insufficient to sustain the judgment of the trial court.

There were two actions between these parties. The first action was brought by Ethel M. Wolford against Albert Wolford to secure a divorce, wherein she alleged there was no community property. She obtained a divorce by reason of the default of her husband in not making an appearance. Then the decree of divorce was set aside by reason of the fraud of the wife. Thereupon, the husband filed an answer and cross-complaint for divorce and asked for a division of certain community property. Pursuant to the stipulation of the parties, the husband filed an amended cross-complaint, wherein he alleged that he was married at the time he entered into the marriage ceremony with Ethel M. Wolford, although at that time he thought his wife was dead. Mr. Wolford, in his amended cross-complaint, also alleged that since the marriage of the plaintiff and defendant, they had jointly acquired one lot with a house thereon and household furnishings therein, and Mr. Wolford asked that he be awarded an annulment and that he be 'awarded one-half of the real and personal property.'

Ethel M. Wolford denied that the parties had jointly acquired the property or that there was community property, but joined in the request that an annulment be granted.

After a trial before the court, wherein both parties were present and represented by counsel, the trial court granted an annulment and one-half of the real property to Mr. Wolford and the other one-half of the real property and all of the personal property was awarded to Mrs. Ethel M. Wolford. Findings of fact and conclusions of law were filed and the judgment entered thereupon, which granted the annulment and provided as follows:

'It is further ordered, adjudged and decreed that said Albert Wolford be and he is hereby awarded an undivided one-half interest in and to the hereinafter described property and said Ethel M. Wolford be and she is hereby awarded an undivided one-half interest in and to the hereinafter described property.' (Then followed a description of the property.)

Neither party asked for a partition of the property and the issue of partition, or right of partition, was never presented in the first action. Neither party appealed from that judgment.

Sometime thereafter, Albert Wolford, the plaintiff herein, commenced the second action against Ethel M. Wolford, alleging that each of the parties hereto were the owners, in equal shares, as tenants in common of a certain lot and building thereon, (being the same property described in the first judgment) and asked for a partition of the property; that said property could not be divided by physical division without great prejudice to plaintiff, and asked that said partition be made by sale of the property.

The defendant in her answer admitted that the parties were the joint owners of the property, but denied that plaintiff was entitled to a partition of the property.

Defendant and appellant contends that the former judgment is a bar to partition, since Mr. Wolford had failed to ask for a partition, and relies upon Section 8604 of the Nevada Compiled Laws, 1929, which provides as follows:

'If the defendant omit to set up a counterclaim in the cases mentioned in the first subdivision of the next preceding section, neither he nor his assignee can afterward maintain an action against the plaintiff therefor.'

In the first action, the court had jurisdiction to determine the ownership of the property acquired by the parties after the marriage. Sec. 4069, N.C.L. 1929; Schneider v. Schneider, 183 Cal 335, 191 P. 533, 11 A.L.R. 1386; In re Van Alstine, 21 Wash. 194, 57 P. 348; Buckley v. Buckley, 50 Wash. 213, 96 P. 1079, 126 Mm.St.Rep. 900.

Some states have statutes providing that in the event of an annulment, the court can, wherever necessary, partition the property. (California Civil Code, Sec. 147 (1941). Nevada does not have a similar statute nor other statutory law permitting partition in an action for an annulment. However, an action for annulment is in the nature of equitable action and the court would have jurisdiction to decree a partition if the parties had requested a partition. A partition can be made in a divorce action, Lundgren v. Lundgren, Utah, 184 P.2d 670, and Huneke v. Huneke, 12 Cal.App. 199, 107 P. 131, and there is no reason why a partition cannot be granted in an annulment action if it were requested by either party.

In the first action, Albert Wolford filed a cross-complaint for annulment and asked for his share of the property. Therefore, he cannot be charged with failure to file a counterclaim or cross-complaint. The question remains: Is Wolford now barred from having a partition of the property by his failure to ask for partition in the annulment action? We think not.

A judgment on the merits, rendered in a former suit between the same parties on the same cause of action, by a court of competent jurisdiction, operates as a bar not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might, with propriety, have been litigated and determined in that action. 50 C.J.S., Judgments, Sec. 657, page 102; Lang v. Lang, 182 Cal. 765, 190 P. 181.

The general rule does not mean that the prior judgment is conclusive of matters not in issue or adjudicated, and which were not implied in, or essentially connected with, the actual issues in the case, although they may affect the ultimate rights of the parties and might have been presented in...