It should be pointed out that since the court did have jurisdiction to divide the property and no appeal was taken from the decree it cannot be collaterally attacked in a later proceeding. Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, Syl. ¶ 2, 379 P.2d 342 (1963). We turn next to the ultimate question raised in this appeal. Can the wife's executor recover from the estate of the husband for alimony or support not previously decreed but claimed for a period of separation of the parties which preceded the husband's death?
2. JUDGMENTS — Doctrine of Res Judicata. The doctrine of res judicata is plain and intelligible, and amounts simply to this — that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal cannot afterwards be litigated by a new proceeding, either before the same or any other tribunal. (Following Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 379 P.2d 342.) 3. SEPARATE MAINTENANCE — Jurisdiction of District Court.
Under the doctrine of res judicata the final judgment of a court of competent jurisdiction upon the merits of a controversy is conclusive as to the parties to the litigation and their privies and it is a bar to any further litigation upon the same cause of action, either before the same or any other tribunal. Heron v. City of Denver, 10 Cir., 251 F.2d 119; Continental Oil Co. v. Jones, 10 Cir., 176 F.2d 519; Viles v. Prudential Ins. Co. of America, 10 Cir., 124 F.2d 78, cert. denied, 315 U.S. 816, 62 S.Ct. 906, 86 L.Ed. 1775; Henderson v. United States Radiator Corporation, 10 Cir., 78 F.2d 674; Jayhawk Equipment Company v. Mentzer, 191 Kan. 57, 379 P.2d 342. But, res judicata does not apply between cases involving different parties.
The state materials cited by the defendant indicate a possible defense in this action based upon the doctrine of "claim preclusion." See Jayhawk Equipment Co. v. Mentzer, 191 Ran. 57, 61, 379 P.2d 342 (1963) (a judgment bars relitigation of the same controversy, including all issues that were raised or that could have been raised in the first action). Although Ms. Martin apparently was not formally named as a plaintiff in the state action, as an heir of the deceased she was represented in the action and she sought emotional damages in that action resulting from the death of her son, which was claimed to have been caused by Dr. Frayser's negligence. The general rule is that a person who is not a party to an action but who is represented by a party is nevertheless bound by the judgment as though she were a party.See Restatement (Second) of Judgments, § 41. Thus, the fact that Ms. Martin was not formally named as a party is not necessarily determinative on the question of claim preclusion.
Under this view, a "claim" is "coterminous with the transaction [from which it arises] regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to plaintiff." Restatement, supra, Comment a. The Kansas Supreme Court suggested its acceptance of this approach in Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 61, 379 P.2d 342 (1963): It is a general rule of law, indeed, an elementary one in this jurisdiction, that in a lawsuit between litigants in their ordinary capacity, so far as relates to a subsequent action on the same claim, not only is everything adjudicated between them which the parties may properly choose to litigate, but also everything incidental thereto which could have been litigated under the facts which gave rise to the cause of action.
First, it precludes parties or their privies from relitigating a cause of action that has been finally adjudicated by a court of competent jurisdiction. Kansas cases applying this principle of "claim preclusion" — res judicata in its broadest sense — are legion. E.g., Parsons Mobile Products v. Remmert, 216 Kan. 138, 531 P.2d 435 (1975); Taber v. Taber, 213 Kan. 453, 516 P.2d 987 (1973); Hutchinson Nat'l Bank Trust Co. v. English, 209 Kan. 127, 495 P.2d 1011 (1972); Wells, Adm'r. v. Ross, 204 Kan. 676, 465 P.2d 966 (1970); Coffey, Adm'r. v. Gilbert, 204 Kan. 305, 461 P.2d 747 (1969); Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 379 P.2d 342 (1963); Kansas Turnpike Authority v. Watson, 189 Kan. 593, 371 P.2d 119 (1962); Kenoyer v. Board of Barber Examiners, 176 Kan. 424, 271 P.2d 267 (1954); Miller v. Massman Construction Co., 171 Kan. 713, 237 P.2d 373 (1951); Hofstetter v. Myers Construction, Inc., 170 Kan. 464, 227 P.2d 115 (1951); Powell v. McChesney, 170 Kan. 692, 228 P.2d 925 (1951); Feldmann v. Feldmann, 166 Kan. 699, 204 P.2d 742 (1949); Wharton v. Zinger, 163 Kan. 745, 186 P.2d 287 (1947); Boyles v. Emery, 159 Kan. 300, 153 P.2d 936 (1944); Kearny County Bank v. Nunn, 156 Kan. 563, 134 P.2d 635 (1943); Stimec v. Verderber, 152 Kan. 582, 106 P.2d 708 (1940); Atchison Eastern Bridge Co. v. Board of County Comm'rs, 150 Kan. 24, 91 P.2d 34 (1939); Levi v. Levi, 149 Kan. 234, 86 P.2d 473 (1939); Clark v. Layman, 144 Kan. 711, 62 P.2d 897 (1936); McMichael v. Burnett, 136 Kan. 654, 17 P.2d 932 (1933); Farrar v. Perkins, 126 Kan. 71, 266 P. 751 (1928); First National Bank v. Schruben, 125 Kan. 417, 265 P. 53 (1928); A.T. S.F
The doctrine of res judicata provides that “where an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived.” Neer, 247 Kan. at 140–41, 795 P.2d 362; see State v. Martin, 294 Kan. 638, 641, 279 P.3d 704 (2012) (res judicata consists of four elements: “ ‘[1] same claim; [2] same parties; [3] claims were or could have been raised; and [4] a final judgment on the merits' ”). The essence of the doctrine of res judicata is that issues “once finally determined ... cannot afterwards be litigated.” Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 61, 379 P.2d 342 (1963). Kingsley's direct appeal from his convictions obviously involved the same parties, and it resulted in a final judgment on the merits.
We hold that the decision in Blair, supra, precludes the plaintiff from maintaining this action under the rule of res judicata. ( Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 379 P.2d 342; and Gray v. Johnson, 150 Kan. 276, 92 P.2d 46.) Having so resolved point No. 1, it is unnecessary to consider point No. 2. The judgment of the lower court is affirmed.
The test to be applied in determining inconsistency is whether proof of one theory must necessarily disprove or defeat the other. ( Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 379 P.2d 342; Ondrasek v. Ondrasek, 172 Kan. 100, 238 P.2d 535.) The question which we must resolve here is whether the two theories — fraud and conversion — pled in the petition and later submitted at the trial are so repugnant as to preclude alternate remedies as a matter of law.
In addition the present claim of the Bank against English is not brought to recover an account receivable. It is a separate claim for damages alleged to have been caused by the false representation and fraud of English. In Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 397 P.2d 342, the court said: "The doctrine of res judicata is plain and intelligible, and amounts simply to this — that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal cannot afterwards be litigated by a new proceeding, either before the same or any other tribunal."