This is an appeal from a judgment in a divorce case instituted by appellee against appellant.
The complaint charged cruel and inhuman treatment. Appellant filed an answer in two paragraphs, the first *Page 432 being a general denial, and the second paragraph alleging former adjudication.
The cause was submitted to the court for trial and the court found for appellee and rendered a judgment granting him a divorce. Appellant filed a motion for new trial which contained the grounds that the decision of the court is not sustained by sufficient evidence and that the decision is contrary to law.
Appellant contends that the evidence indisputably shows that the cause for divorce alleged in the complaint and submitted to the court was formerly adjudicated, and therefore the judgment rendered by the court in this cause must be reversed.
The evidence does indisputably show that on the 23rd day of July, 1931, appellee filed his complaint against appellant for divorce in the Superior Court of Marion County, Room Two; that appellant was duly summoned to appear and answer said complaint; that appellant did appear and file answer thereto; that thereafter, said cause was duly submitted to said court for trial on October 22, 1931, and on that date said court found for appellant in said cause, and rendered judgment therein denying appellee a divorce; that the complaint in the cause at bar was filed in Superior Court of Marion County, Room One, and summons issued thereon on October 29, 1931, seven days after said judgment was rendered. This cause was thereafter transferred to the Hancock Circuit Court upon a change of venue.
Appellee, when questioned as a witness in the trial of this cause, testified that at the time he filed said first complaint for divorce he knew all of the facts, which related to the alleged cruel and inhuman treatment of him by his wife, concerning which facts evidence had been introduced in this cause.
It is necessary that we determine but one question, and that question may be stated as follows: "When a *Page 433 court of competent jurisdiction adjudicates a cause of action for divorce, denying the divorce, are all grounds for divorce known to the plaintiff, at the time such action is instituted, deemed to be adjudicated?"
As early as 1825, in Fischli v. Fischli, 1 Blackford 360, our Supreme Court adopted the rule of law that whenever "a matter is adjudicated and finally determined by a competent tribunal, it is considered forever at rest."
The Supreme Court said further in that case, with reference to said rule of law, "`This is a principle upon which the repose of society materially depends; and it therefore prevails, with a very few exceptions, throughout the civilized world. This principle not only embraces what actually was determined, but also extends to every other matter which the parties might have litigated in the case.'" Quoted and approved in Elwood v.Beymer et al. (1885), 100 Ind. 504, 509. This principle has been approved by our courts of review ever since.
In Elwood v. Beymer, supra, our Supreme Court held that where a defendant, in an action for partition of land files a cross-complaint setting up certain liens against the land, an answer which alleges that the liens set up in the cross-complaint were or might have been litigated in a former suit for partition of the same land, between substantially the same parties, was held good on demurrer as an answer of former adjudication in bar of such action.
In Reynolds v. Lee (1933), 97 Ind. App. 460, 186 N.E. 337, a decree in a suit to construe a will was held to be a former adjudication of a claim of title to real estate belonging to testator at time of his death, which claim was made by descendants of a party to said suit.
In Walker et al. v. Walker et al. (1898), 150 Ind. 317, 50 N.E. 68, it was held that a decree of divorce constitutes an adjudication between the divorced parties of *Page 434 all property rights and therefore real estate conveyed by a husband to his wife in pursuance of an antenuptial agreement cannot be recovered because of a breach in the antenuptial agreement after the divorce has been granted.
In The Ind. Bloomington and Western R. Co. v. Koons (1885),105 Ind. 507, 5 N.E. 549, it was held that where in consideration of the conveyance of a right of way, a railroad company contracts with the landowner to construct and maintain fences along such right of way and to construct and maintain a crossing, a judgment in an action upon such contract, for damages for a failure on the part of the railroad company to construct the crossing is a bar to an action for a failure to construct the fences.
In that case the Supreme Court said (p. 510), "A party will not be permitted to present by piecemeal, in successive suits, claims which grow out of an indivisible, entire contract, and which might have been litigated and determined when the suit was first brought. In such a case, the judgment in the first suit will be a conclusive merger of all the plaintiff's rights under the contract."
In that case the Supreme Court quotes with approval fromHenderson v. Henderson (1843), 3 Hare Ch. 100, 115, 67 Eng. Rep. 313, as follows (p. 510): "`Where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.'" *Page 435
This is a case of first impression in the courts of review of this state, but the holdings of said courts in the cases we have referred to force us to hold that the principles of law as to former adjudication are applicable in this case, and that all causes for divorce which appellee had, and of which he had knowledge at the time he instituted his first action for divorce were adjudicated in that divorce proceeding. We find no good reason why said principles are not applicable here. See Brown v. Brown (1859), 37 N.H. 536, 75 Am. Dec. 154; Crockett v.Crockett (1906), 132 Ia. 388; Wagner v. Wagner (1886),36 Minn. 239, 30 N.E. 766; Dowling v. Dowling (1921), 93 N.J. Eq. 159, 115 A. 378; Bartlett v. Bartlett (1873),113 Mass. 312, to the same effect. See also note with long list of authorities Ann. Cas. 1916B, 875.
Paraphrasing the language in The Ind. Bloom. Western R. Co. v. Koons, supra, quoted above, so as to make it applicable to this case, it may be truly said, "A party will not be permitted to present by piecemeal, in successive suits, claims (for divorce) which grow out of an indivisible relationship between the parties, to wit, marital status, and which claims might have been litigated and determined when the suit was first brought."
If the judgment in the cause at bar had been based solely on evidence of cruel and inhuman treatment which had occurred after the judgment in the previous proceeding was rendered, the judgment in the cause at bar would not be subject to an attack of former adjudication.
Appellee has cited Smith v. Smith (1905), 35 Ind. App. 610, 74 N.E. 1008. In that case the court held that a judgment denying a wife divorce and alimony is not res adjudicata as to a subsequent action by such wife for support for herself and children. That that decision is not controlling here is apparent from the language of the court in that case, where it says (p. *Page 436 614): "A complete answer to appellant's contention is found in the statement of this court in the case of Carr v. Carr (1893), 6 Ind. App. 377, 33 N.E. 805: `The obligation of a husband to support his wife and infant children is a continuing one, and lasts as long as the relation exists. The purpose of this action is not to recover for past support, but for present and future maintenance. . . .'"
For the reasons stated we hold that the decision of the court is contrary to law and the judgment is therefore reversed with instructions that appellant's motion for new trial be granted.
Kime, P.J., and Wiecking, J., dissent.