Sanborn v. Sanborn

140 N.E. 407, 1 Ohio Law. Abs. 880, 106 Ohio St. 641, 1922 Ohio LEXIS 216

Opinion

MARSHALL, C. J.

Epitomized Opinion

By a divorce decree entered in Lawrence county in favor of M. Sanborn against her husband, R. San-born, the wife was awarded the custody of the children and granted alimony in installments of $25 a month. The court ordered M. Sanborn to convey to her husband certain real estate, and upon her failure to do so, decreed that this decree should operate as a conveyance. The order also divested her of all dower. No appeal or error proceeding was ever prosecuted from the decree. The wife accepted the payment from the husband of alimony, but refused to execute a deed. This is an action by the wife for the partition of this same real estate. She contended that the Common Ple^fcin the divorce proceeding, had no authority to wRier her to convey the property to her husband, as the divorce was granted upon the husband’s agression, under 11990-1 and 2 GC. The Common Pleas found for R. Sanborn. The Court of Appeals reversed this. ' In reversing the latter, the Supreme Court in its syllabus, 5 Abs. 134, held as'follows:

1. “Where a court of competent jurisdiction, having all parties before it, and having jurisdiction of the subject-matter of the action, renders an erroneous judgment, and no appeal or error is prosecuted therefrom, and one of the parties accepts from the opposite party substantial sum of money awarded by such judgment, and does not thereafter restore or tender restoration of the moneys so received, he is not estopped in any collateral proceeding between the same parties from claiming the invalidity of that part of the judgment favorable to the opposite party.”