Jenkins v. Jenkins , 119 Or. 292 ( 1926 )

This is an appeal from a judgment dismissing a complaint for divorce filed by Tisha Belle Jenkins, and a decree awarding Thomas E. Jenkins, her husband, a divorce on his cross-complaint.

AFFIRMED. Tisha Belle Jenkins brought a suit for divorce from Thomas E. Jenkins, and predicated her cause upon the ground of matrimonial desertion. The defendant, answering, denied that he had deserted the plaintiff, and filed his cross-complaint in which he prayed for a divorce from plaintiff on the ground of cruel and inhuman treatment. The plaintiff, answering the cross-complaint, merely denied the allegations thereof. At the conclusion of the hearing and the taking of testimony, the court found:

See 9 R.C.L. 439.

"That on the 5th day of April, 1918, in Burns, Harney County, Oregon, plaintiff entered a bedroom with one Rector Arnwine between ten o'clock at night and midnight, locked the door to said bedroom and remained therein with the said Rector Arnwine for a considerable length of time; that defendant saw the said Rector Arnwine and plaintiff enter the said bedroom and immediately thereafter he came to town to find the sheriff of said county; that in the search for said sheriff he found the district attorney of Harney County, Oregon, and they together located the sheriff; that said defendant, sheriff and district attorney went to the house where the plaintiff and Rector Arnwine were inclosed and defendant indicated to the officers the room in which they were; that the sheriff attempted to open said door but found it locked; that after some time of waiting and upon threats by the sheriff to break down the door unless it was opened, the plaintiff opened the said door; that said plaintiff and Rector Arnwine were in the room alone."

The court further found that the plaintiff and defendant have not lived together as husband and wife since that date.

As a conclusion of law, the court found that the equities were with the defendant, and, based upon such conclusion, made an order dismissing the plaintiff's complaint and awarding the defendant and cross-complainant a divorce upon the alleged ground of cruel and inhuman treatment and personal indignities.

The findings of fact made by the trial court are clearly supported by the evidence. But, says zealous counsel, the trial court erred in permitting the evidence relating to the incident of April 5, 1918, to be introduced, because this matter is "resadjudicata." Jenkins v. Jenkins, 103 Or. 208 (204 P. 165).

The determination of this court as to the facts or the law in the former suit cannot be rejudged in this cause. However, the judgment of the court can make resadjudicata only that which was in issue and decided in the former case: 4 C.J. 1102. No fact found by the trial court in this cause is in conflict with what we decided in that. In the former suit, we held that the facts did not prove that the wife was an adulteress as charged by her husband. Jenkins, in his present pleading, avers the facts recited above as found by the court, together with a number of subsequent acts of cruel and inhuman treatment and personal indignities growing out of the wife's association with men other than the notorious Rector Arnwine, as well as subsequent and additional wrongful acts of association with that man: Jones v. Jones, 59 Or. 308 (117 P. 414). These additional acts subsequent to April 5, 1918, were sufficient basis for a suit for divorce upon the ground of cruel and inhuman treatment or personal indignities rendering life burdensome. Furthermore, divorce suits are tried before the court without a jury and partake of the nature of suits in equity. See Or. L., Title VI, Chap. 8.

A rule of general application is stated thus:

"In equity, the defense of former adjudication, to bar a hearing on the merits, must always be set up by proper averments in the pleadings, and a defendant cannot present the question by a motion to dismiss the bill. * * In those states in which the Code procedure is used, a former adjudication is held to be embraced by the requirement that `new matter' must be set up in the answer. And, therefore, to be available as a defense it must be pleaded." 9 Ency. of Plead. Prac., pp. 616, 617.

The principle quoted above has no application to a situation where the litigant has had no opportunity to plead. However, in the cause at issue the litigant, with full opportunity, failed to plead any matter as res adjudicata. It follows that the decree appealed from is affirmed.

Owing to the peculiar circumstances of this case, it is directed that Tisha Belle Jenkins recover her costs on appeal to this court. AFFIRMED.