specially concurring.
In proceedings below the trial court entered an order on 4 April, 1986, reciting that “Helen has moved to dismiss this amended complaint contending that the decision of the trial court is res judicata and that this Court has no jurisdiction to correct the amended decree entered in Jefferson County, Case No. 1-929.”
The court granted as to the defense of res judicata, and also ruled that it lacked jurisdiction to correct the final judgment in that case. It denied as to Count II on the basis that the court (divorce court, Case 1-929) did not have jurisdiction to grant Helen B. Olsen a life estate in the property of Vernal Olsen.” R., p. 53. Count II included the claim for partition.
While I am in agreement with Justice Johnson that the judgment must be reversed with instructions to dismiss, I find it appropriate to dismiss on other grounds. The district court in this partition action did have tentative jurisdiction over the parties and over the subject matter. Namely, that had there not been any challenge raised by the defendant, Helen, interposing the defense of res judicata, any judgment entered by the court in the partition action might have had ultimate validity provided it became final and no appeal was taken.
But an appeal was taken, and we have before us the ruling of the partition court on the dual challenge of res judicata.. If the trial court erred, we need not indulge in extending ourselves to raise sua sponte the issue of lack of jurisdiction, and on that basis reverse. The court below realized that the divorce court’s disposition of the property was conclusive, i.e., specifically res judicata, but implicitly ruled that it nevertheless had jurisdiction, in the power sense, to override and nullify the divorce court’s disposition of the property. Implicitly also recognized was that the court in the instant action could “not act as a court of errors (sic, appeals) to examine or reverse the judgment [of the divorce court.]”
Nevertheless, after that unusual internally inconsistent evaluation of the situation, the trial court agreed with Vernal’s contention that Vernal somehow had a right to have the property partitioned, notwithstanding that the clear and plain provisions of the divorce decree bestowed the right of possession in Helen, until that right might terminate — as pointed out by Justice Johnson. Both spouses were awarded a one-half interest in the property, *108but Helen’s was concomitant with the awarded right of possession, subject to certain conditions; Vernal’s was subject to her right of possession, subject to certain conditions. As to the respective conditions, such were calculations of credits and debits to be made only when the time arrived that Helen was no longer in possession.
The trial court in this action, notwithstanding acknowledgement of the doctrine of res judicata then proceeded to ignore the clearly worded provisions of the divorce decree, and proceeded to a present partition of the real property. The heart of the court’s error was in failing to pay any heed to the fact that the condition precedent had not been fulfilled — i.e., Helen was still on the property, and Vernal still had nothing but an expectancy which was yet to materialize, and will not materialize until the real property is no longer possessed by Helen. It is an expectancy which he can sell on the open market.
When the divorce court entered its final judgment with the above provisions, the court had jurisdiction over the parties, jurisdiction over the property, and jurisdiction in the power sense. When that final judgment became wholly final, namely, all time gone by in which to appeal and file post-judgment motions, it was not subject to modification in that action or in any other action, unless the defense of res judicata was not raised.
Because the doctrine of res judicata was a complete bar the trial court in the instant action was in error in believing that it could do anything. Moreover, as to the instant action, res judicata was also a bar which precluded jurisdiction in a second action involving the same property and the same parties. The trial court in the divorce action implicitly had found itself possessed of jurisdiction in all senses. That, too, with the passage of time would become subject to the bar of res judicata,1 The principles of res judicata apply to questions of jurisdiction, as well as to other issues, as well as to jurisdiction of the subject matter. Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85 (1939).
There may be some merit in the views of the chief justice. It is true that Mrs. Olsen has not appealed. For that reason I am also concurring in the opinion authored by Justice Johnson. It is also true that courts generally, and this court specifically, jealously guard against hearing cases which are not properly before it. A res judicata approach to a jurisdictional question also appears to be akin to a purely jurisdictional question.
Also, again, I am reminded of Rabido v. Furey, 33 Idaho 56, 190 P. 73 (1920), where this Court held, “Since the appeal was taken from the judgment and not from a portion thereof, the entire judgment is before the court and subject to review, even though the respondents took no cross-appeal.”
. The doctrine of res judicata is still alive in Idaho although it suffered serious injury at the hands of this Court in Duthie v. Lewiston Gun Club, 104 Idaho 751, 663 P.2d 287 (1983). In that case a majority of this Court, over the protest of a strong dissent, emasculated what had been until then one of the most strictly adhered to principles of Idaho jurisprudence by declaring that the doctrine of res judicata need not be applied where the circumstances were not "ripe,” i.e., that after a judgment became wholly final, a second suit involving the same issues previously litigated could nevertheless be brought, provided that there was the interjection into the second law suit of some additional fact not present in the first.
Here is Paul Harvey, again, with the rest of the story: After the Duthie case ending in a final judgment decreeing Duthie entitled to take and use water from a Gun Club supply line, and after all time for appeal had expired, the Gun Club severed the line to Duthie’s residence. That was the "new fact.”
It would be a kindness to the trial bench and bar if two more votes were forthcoming to erase any precedential effect which may otherwise some day be accorded it.