Ison v. Ison ( 1928 )

Hill, J.

Annie Lon-Spencer Ison brought a libel for divorce against Emmett Ison, on the ground of cruel treatment and conviction of a felony. On the trial the jury granted the plaintiff a total divorce, but refused to relieve the husand of his disabilities. Subsequently the husband filed his petition praying for the removal of his disabilities. A jury refused to relieve him. A year or so later he brought a second petition to have his disabilities removed. On the hearing the judge ordered the solicitor-general of the circuit to represent the State and to make it a party, which was done. The solicitor-general filed a plea of res adjudicata. The plaintiff made a motion to strike that plea, on the ground that such a plea was not appropriate to a ease of this kind; that the issues were not the same, nor were the parties the same; that the statute in such cases contemplated “a personal status of a citizen;” that no judgment had been taken on the previous verdict finding against the removal of the plaintiff’s disabilities at the term when it was rendered. The presiding judge allowed a judgment nunc pro tunc to be entered upon the verdict, overruled the motion to strike the plea of res adjudicata, and dismissed the suit. To this ruling the plaintiff excepted. Held, that the court did not err in overruling the motion to strike the plea of res adjudicata, and in dismissing the suit.

(a) The first and second petitions of the plaintiff to be relieved of his disabilities are practically identical. The Civil Code (1910), § 2966, provides for a petition and hearing on the question of having plaintiff’s disabilities removed. It does not provide for a subsequent hearing.

No. 6368. April 12, 1928. J. A. Darsey, for plaintiff. E. M. Owen and O. L. Redman, for defendant.

(J) No attack was made on the validity of this section of the code, and no question was made as to the right of the plaintiff to bring a suit under this section for removal of his disabilities; but it was contended that he did not have the right to bring a second suit under this section of the code after a judgment against him in a former proceeding under the same section. Judgment affirmed.

All the Justices concur.