Opinion
No. 5696.
March 10, 1931.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.
Action to set aside a property settlement on the ground of fraud and to declare a trust. Judgment for defendant. Affirmed.
P.C. O'Malley, for Appellant.
The decree of divorce in the case of James E. Scanlon v. Helen G. Scanlon is not res judicata of the community property rights. We need no other authority on this point than the case of Rogers v. Rogers, decided February 4, 1926, by this court, wherein the court said:
"Identity of issue is one of the essentials of res judicata, and it must appear that the precise question was raised and determined in the former suit. ( Wood River Power Co. v. Arkoosh, 37 Idaho 348, 215 P. 975; Mason v. Ruby, 35 Idaho 157, 204 P. 1071; Berlin Machine Works v. Dehlbom L. Co., 29 Idaho 494, 160 P. 746; Marshall v. Underwood, 38 Idaho 464, 221 P. 1105)."
"The identical issue must have been raised and determined in a former suit for its decree to be res judicata of question raised in subsequent action." ( Rogers v. Rogers, 42 Idaho 158, 243 P. 655.)
B.A. McDevitt, for Respondent.
This is not a direct attack upon the decree in the divorce action of Scanlon v. Scanlon, and no facts are set forth wherein fraud is alleged and sought to be proved.
The property rights of the community were completely adjudicated in said divorce action.
In this respect defendant submits to the court the following authorities: 31 C. J., at p. 229, sec. 1395, says:
"The divorce decree finally and irrevocably settles the rights of the parties where the pleadings allege, the court finds, and the decree recites, that there is no community is of necessity settled by the divorce decree, with the consequence that neither the husband nor the wife can thereafter harass each other concerning property rights."
In re Bollinger's Estate, 170 Cal. 380, 149 P. 995, holds as follows:
"In a husband's action for divorce, alleging that there was no community property, and where there had been no appeal from the interlocutory judgment, the finding and the decree, reciting that there was no community property, irrevocably settled the property rights after the expiration of the six months allowed by Civ. Code, Section 131, for appeal from the entry of the interlocutory decree."
An allegation in a husband's complaint for divorce that there was no community property even though a mere conclusion, is sufficient, if proved upon issue joined, to support a finding that there was no community property.
A very good case citing authorities and very similar to the case before the bar, is the California case, Stone v. Stone, found at 58 Cal.App. 415, 208 Pac., at p. 993, wherein it was held that even a fraudulent allegation that there was no property was res adjudicata and could not be attacked.
In 1924, James E. Scanlon, on an amended complaint charging desertion, and alleging that there were no community property rights, secured a divorce from Helen G. Scanlon, in which action Mrs. Scanlon filed no pleadings but through her attorneys, entered into a stipulation which stated that in full settlement of all property rights of the parties, Mr. Scanlon should pay Mrs. Scanlon $25 a month until William Scanlon, the youngest of the three minor children then in Mrs. Scanlon's custody, should reach his majority. Such stipulation was approved in the decree as in full settlement of all property rights of the parties.
Thereafter Mr. Scanlon made a will leaving nine-tenths of his property to the three minor children, and one-tenth, in portions of one-twentieth each, to an orphanage and a parish priest, respectively.
After Mr. Scanlon's death, January, 1930, Mrs. Scanlon instituted the present action May, 1930, against his executor, to set aside the property settlement made at the time of the divorce proceedings, and the decree based thereon, as in fraud of appellant, and declare a trust in one-half the property held by Mr. Scanlon at his death as community property.
Appellant contends the complaint in the divorce action was intended to deceive her, and that she was thereby fraudulently misled into believing that there was no community property, and hence mistakenly authorized full settlement of the community property rights by the aforesaid payments, and received no division of the community property. Appellant also urges ignorance of the law, which may not avail her. ( Glover v. Brown, 32 Idaho 426, at 441, 184 P. 649; 34 C. J. 461.)
The trial court sustained a demurrer to the complaint on the ground among others that it did not state facts sufficient to constitute a cause of action. The fraud urged by appellant as a basis for setting aside the previous decree is intrinsic, and not extrinsic or collateral thereto. The demurrer, therefore, was properly sustained. ( Donovan v. Miller, 12 Idaho 600, 10 Ann. Cas. 444, 88 P. 82, 9 L.R.A. 524; Zounich v. Anderson, 35 Idaho 792, 208 P. 402; Stone v. Stone, 58 Cal.App. 415, 208 P. 993; 34 C. J. 472.)
This disposition of the cause renders it unnecessary to discuss other features of the case. The decree sustaining the demurrer and dismissing the action is affirmed. Costs awarded to respondent.
Lee, C.J., and Budge, Varian and McNaughton, JJ., concur.