Luttrell v. Reynolds

37 S.W. 1051, 63 Ark. 254, 1896 Ark. LEXIS 283

• Court: Supreme Court of Arkansas
• Decided: November 28, 1896
• Status: Published

Opinion

Wood, J.,

(after stating the facts.) The issue as to curtesy was expressly raised and determined upon the merits in the former suit. . That was the effect of the finding and judgment of the court upon the demurrer. No technical objection was raised to the complaint. The facts are well pleaded, and were conceded to be true. If the facts stated did not show curtesy in the defendant, the complaint in the first suit was good. Now, whatever may be the rule elsewhere, this court in McDaniel v. Grace, 15 Ark. 465, held that there must be actual seizin in the wife during coverture to constitute curtesy; unless the lands are “waste and uncultivated, and not held adversely.” The complaint in the first suit did not show actual seizin in the wife of the lands in controversy. Nor did it show that said lands were wild and uncultivated, not held adversely. Seizin in law draws to it the possession only of such lands. The lands in controversy may have been held adversely continuously during- the coverture. There is nothing- in the first complaint to show to the contrary. Therefore said complaint did not affirmatively show curtesy, and was not. demurrable. Mr. Freeman says: “If any court errs in sustaining- a demurrer and entering- judgment for defendant thereon, when the complaint is sufficient, the judgment is, nevertheless, on the merits. It is final and conclusive until reversed on appeal.” 1 Freeman, Judg. sec. 267. See also the following as to res judicata on demurrer. Gray v. Dougherty, 25 Cal. 266; cases cited to note in Lea v. Lea, 96 Am. Dec. 772; Aurora City v. West, 7 Wall. 82, 99; cases cited in note to Bell v. Merrifield, 4 Am. St. Rep. 436; Gould v. Evansville R. Co., 91 U. S. 526; McLaughlin v. Doane, 10 Am. St. Rep. 210; Smith v. Hornsby, 70 Ga. 552; Grotenkemper v. Carver, 4 Lea, 375; Ruegger v. Ind. Ry. Co. 103 Ill. 449; Price v. Bonnifield, 2 Wyo. Ter. 80; Lamb v. McConkey, 76 Iowa, 47.

Res judicata. Service of process on cross-bill.

2. The judgment entry showed that the court rendered the judgment, identified the parties to it, that the court found that the defendant had curtesy, that the plaintiffs stood on their complaint, refusing to plead over, and that their complaint was dismissed with costs. This was sufficiently formal. 1 Freeman, Judg. p. 50; Kimbro v. Va. & Tenn. R. Co. 56 Ga. 185.

The decree of the court on the question of res judi-cata as to curtesy is affirmed.

3. But the court erred in decreeing dower to the widow of J. S. Reynolds, without giving the defendant, D. W. Reynolds, an opportunity to be heard. On her motion she was made party defendant, and filed her petition for dower. The record does not show that this petition was made a cross-bill against appellee. It does not show that appellee was served with process, or that he entered his appearance to said proceedings. This was necessary before the decree as to dower could affect him. Ringo v. Woodruff, 43 Ark. 497; Pillow v. Sentelle, 49 Ark. 430.

The decree as to dower is reversed, and the cause remanded.

Hughes and Battle, JJ., dissent.