Mariness v. Sirilo

ON PETITION FOR REHEARING

PER CURIAM.

Upon consideration of the appellant’s petition for rehearing we have been made aware of an error in the statement of facts as set forth in the original opinion.

The original opinion states that the husband received all of the payments on the note and mortgage from the date of the sale until after the appeal time had run on the judgment dissolving the marriage “apparently without objection by the wife”. The record, however, reflects that “right after the divorce” the wife did make demands for part of the payments but the husband refused her demands and received all of the payments until after the appeal time had run in the dissolution proceeding and until he filed his complaint in the instant proceeding. We hereby amend the opinion accordingly.

This change in the facts, however, makes no difference in the conclusion which was reached by the Court in the original *764opinion. It is the Court’s view that the trial court was not barred by res judicata from doing equity under the circumstances of this case where it could conclude that a mistake occurred' at the time of the property transaction and that the wife failed to legally challenge the receipt of the payments by the husband until it was too late to be resolved in the dissolution proceeding.

Finding the remaining allegations of the petition to be without merit, we adhere to our former opinion and judgment entered on December 19, 1974, as amended herein.

It is so Ordered.

HOBSON, J., and JOANOS, JAMES E., Associate Judge, concur. McNULTY, C. J., concurs in conclusion only.