Jenkins v. . Jenkins

36 S.E.2d 233, 225 N.C. 681, 1945 N.C. LEXIS 397

Opinion

Devin, J.

The only question presented by the appeal is the correctness of the ruling below that plaintiff was not estopped to maintain her action on the contract between herself and the defendant set out in the complaint. The question of the validity of the contract is not presented, and it seems to have been conceded by the defendant that under the decisions of this Court in Archbell v. Archbell, 158 N. C., 408, 74 S. E., 327, and Lentz v. Lentz, 193 N. C., 742, 138 S. E., 12, the binding effect of the contract between the parties, if otherwise valid, is not affected by the subsequent divorce decree. The single assignment of error brought forward poses the question whether the plaintiff’s answer in the divorce action and the judgment thereon render the subject of her present action res judicata.

It is contended that plaintiff’s claim for monthly payments under the contract having been set up in the answer and ignored in the judgment in an action between the same parties, this constituted a judicial denial of plaintiff’s claim, which now estops her from asserting the same claim in this action.

Since alimony in actions for divorce a vinculo is not permitted in this jurisdiction, save pendente lite, or where alimony is prayed in a successful cross action for divorce a mensa, the answer in the divorce action now relied on by the defendant did not raise an issue. Silver v. Silver, 220 N. C., 191, 16 S. E. (2d), 834; Hobbs v. Hobbs, 218 N. C., 468, 11 S. E. (2d), 311; Adams v. Adams, 212 N. C., 373, 193 S. E., 274; Dawson v. Dawson, 211 N. C., 453, 190 S. E., 749. Nor in an action for absolute divorce was a counterclaim or cross action for debt as set up in tbe answer cognizable by tbe court, and tbe plaintiff in tbat action (defendant here) by bis failure to reply seems to have so regarded it. No judgment was rendered thereon either in affirmance or disallowance of her claim. Whether considered as a claim for alimony or an'action for debt no issue was presented which the court could or did adjudicate.

The general rule that a judgment in a civil action constitutes an estoppel upon the parties, in a subsequent action for the 'same cause, as to all issuable matters contained in the pleadings, has been uniformly upheld by the courts. Tyler v. Capehart, 125 N. C., 64, 34 S. E., 108; Shakespeare v. Land Co., 144 N. C., 516, 57 S. E., 213; Distributing Co. v. Carraway, 196 N. C., 58, 144 S. E., 535; Garrett v. Kendrick, 201 N. C., 388, 160 S. E., 349; Jefferson v. Sales Corp., 220 N. C., 76, 16 S. E. (2d), 462. The reason is that a party should be required to present his whole cause of action at one time in the forum in which the litigation has been duly constituted. Jefferson v. Sales Corp., supra. But the judgment is conclusive only on the points raised by the pleadings or which might justly be predicated on them, and the rule does not embrace matters not properly introduced and not cognizable in the former action and as to which no judgment was rendered. Stancil v. Wilder, 222 N. C., 706, 24 S. E. (2d), 527.

The ruling of the court below holding the plea of res judicata insufficient to bar plaintiff’s action for admittedly past due monthly payments under the contract must be

Affirmed.