Opinion
No. 27559.
January 31, 1927.
Appeal from Civil District Court, Parish of Orleans; E.K. Skinner, Judge.
Action by Joseph P. McCubbin against Stella Hutchings McCubbin. Judgment for plaintiff, and defendant appeals. Affirmed.
Florence Loeber, of New Orleans, for appellant.
J.L. Warren Woodville, of New Orleans, for appellee.
The defendant has appealed from a judgment of divorce and relies upon a plea of res judicata. The divorce was granted for the cause given in the Act No. 269 of 1916, p. 557 — that is, that the parties had been living separate and apart from each other for 7 years or longer. It was proven on the trial, and is not disputed, that they had been living apart from each other continuously for a period exceeding 18 years when this suit was tried. The only defense insisted upon was the plea of res judicata, based upon three judgments rendered against the plaintiff, in three previous suits for a divorce on the ground of 7 years' separation, each judgment being a dismissal of the plaintiff's suit. The first suit was filed in August, 1916, the allegation being that the plaintiff and defendant had been living separate and apart for 11 years. The defendant pleaded that the petition did not show a cause or right of action, the basis of the plea being that the Act No. 269 of that year would be unconstitutional if construed so as to grant a right of action for a divorce for a cause or condition existing before the statute was enacted. The judge to whom the case was allotted, being of the opinion that the statute gave the right of action only for 7 years' separation subsequent to the enactment, sustained the exception of no cause or right of action and dismissed the suit. The judgment was signed on the 4th of February, 1918. The judgment was contrary to the ruling of this court in Hurry v. Hurry, 141 La. 954, 76 So. 160, construing the statute as granting the right to a divorce for 7 years' separation even though a part of the time was before the statute was enacted. See, also, Hurry v. Hurry, 144 La. 877, 81 So. 378, where it was held that the act of 1916 was not unconstitutional in granting a right of action for a divorce for a cause or condition existing before the law was enacted. That, however, is a matter of no importance in considering the effect of the judgment dismissing plaintiff's first suit for a divorce, on the 4th of February, 1918, because the plaintiff failed to appeal from the judgment and allowed it to become final. In March 1918, he filed the second suit for divorce, alleging that he and his wife had been living separate and apart continuously since the date stated in his original suit. To the second suit the defendant filed an exception of no cause or right of action and a plea of res judicata, the latter being based upon the judgment dismissing the first suit. The case was allotted to the judge who had dismissed the first suit, and he sustained the plea of res judicata and dismissed the second suit. The judgment was signed on the 6th of May, 1918. There was no appeal from that judgment, but, in May, 1920, the plaintiff filed his third suit for divorce, alleging again that he had been living separate and apart from his wife ever since the date stated in the first suit. The defendant again filed an exception of no cause or right of action and a plea of res judicata. The case was allotted to another judge, and he sustained both the exception of no cause or right of action and the plea of res judicata and dismissed the suit. On appeal to this court the judgment sustaining the plea of res judicata was affirmed. See McCubbin v. Hutchings, 150 La. 949, 91 So. 350. The decree was rendered in March, 1922. Thereafter this the fourth suit was filed. The defendant again filed an exception of no cause or right of action and a plea of res judicata. The case was allotted to another judge of the civil district court, and he overruled the exception of no cause or right of action and the plea of res judicata. On the trial of the case on its merits there was virtually no defense.
This is an unusual plea of res judicata. It is founded not only upon a previous judgment dismissing a similar suit between the same parties but also upon a judgment thereafter declaring the right of action foreclosed by the first judgment, and upon a third judgment declaring the right of action foreclosed by the first and second judgment. With all of that, we agree with the judge of the civil district court that the plea is not well founded — not because the judgment dismissing the first suit was based upon a wrong interpretation of the statute, but because the plea of res judicata is never an appropriate defense in a suit for divorce on the ground that the parties have been living apart for 7 years. It is not possible for a judgment, declaring that the plaintiff is not entitled to a divorce on the ground of 7 years' separation from his wife, to declare that he shall not be entitled to a divorce on that ground at some future time. Two such suits filed at different dates are not founded upon the same cause of action. If the judgment in any one or all of the three former suits had rejected the plaintiff's demand for a divorce after a trial of the case on its merits, the plaintiff's right of action in this suit would not be thereby foreclosed, as res judicata. It cannot be that the several judgments dismissing the plaintiff's three previous suits have had the effect of forever denying him the right to a divorce for a cause for which the law gives to any and every person in his marital situation the right to a divorce. We are constrained to overrule the decision in McCubbin v. Hutchings, 150 La. 949, 91 So. 350, which, although it was between the same parties who are the parties to this suit and had the same object which this suit has, was for a different cause of action.
The defendant's alternative plea or exception of no cause or right of action was founded, as we understand from her brief, upon the fact that there was never a lapse of 7 years from the date of the judgment in any of the previous suits to the date of filing of the next suit. When a demand for divorce on the ground of 7 years' separation is rejected, or the suit dismissed, the plaintiff is not required to wait 7 years longer before bringing another suit on the ground of 7 years' separation. The judgment in such case does not interrupt the term of separation.
The judgment appealed from is affirmed.