Vickers v. Vickers ( 1921 )

By the Court,

Coleman, J.:

This is an appeal from an order entered after judgment on the pleadings in favor ’of the defendant. The respondent in this case brought a separate maintenance suit (see Vickers v. Vickers [No. 2488] 45 Nev. 272, in the circuit court of West Virginia, alleging as a ground therefor desertion. To the complaint in that action Dr. Vickers, the appellant, filed an answer denying the matter alleged in the complaint, and charged the plaintiff, Mrs. Vickers, with cruelty. The case having been heard and submitted, the court entered a decree in favor of Mrs. Vickers for separate maintenance.

Subsequent to the institution of this action in the district court of Washoe County by Dr. Vickers, Mrs. Vickers filed what she termed a special appearance, wherein she moved to quash the summons issued in this suit, to quash the service thereof, to stay all proceedings, to strike the complaint from the files, and to dismiss the action. As one of the grounds in support of the motion to dismiss, it was charged that the cause of action relied upon and alleged in the complaint was cruelty, consisting of the identical facts pleaded by Dr. Vickers in his answers in the separate-maintenance suit in West Virginia. The motion to dismiss came on for hearing before Hon. Thomas F. Moran, in department No. 1 of the district court of Washoe County, and after a full hearing he filed a written opinion in which he held that the motion to dismiss should be denied, and an order was entered accordingly.

Thereafter Mrs. Vickers filed her answer to the complaint, and, after denying the allegations of cruelty, pleaded the proceeding in the separate-maintenance suit and the decree therein as a bar to this action. A reply was filed to said answer. Upon the filing of the reply a motion for a judgment on the pleadings was filed by counsel for the defendant. This motion was heard by Judge Lunsford, in department No. 2 of said court, and upon consideration sustained, and judgment was entered by the court in favor of the defendant. After judgment on the pleadings had been entered, the plaintiff moved to set it aside upon the ground that the court had no jurisdiction to enter it, for the reason that the same matter had been heard and determined by Judge Moran, who, as stated, denied the motion. It is from the order of Judge Lunsford thus made that this appeal is taken.

To sustain the contention urged upon the lower court and here, paragraph 4 of rule.ll of the district court is invoked. It reads:

“No motion once heard and disposed of shall be renewed in the same cause, nor shall the same matters therein embraced be reheard, unless by leave of the court granted upon motion therefor, after notice of such motion to the adverse parties.”

Judge Moran, in passing upon the motion to dismiss the action, as shown by his written opinion, expressly refused to pass upon the force and effect of the decree entered in the separate maintenance suit in West Virginia, awarding Mrs. Vickers separate maintenance, which was the basis for the judgment on the pleadings which was entered by Judge Lunsford. Just why Judge Moran refused to consider the judgment of the West Virginia court in determining the motion to dismiss, we do not know, as he did not state his reason for not doing so; but he no doubt entertained the view that the only way in which a party can avail himself of a former adjudication is by way of a plea, and not by a motion to dismiss, as was held in Hax v. Leis, 1 Colo. 187. The practice of taking advantage of a former adjudication, on motion, has been expressly condemned. Coffee v. Groover, 20 Fla. 64; Majors v. Majors, 58 Miss. 806.

1, 2. But it appears that, when the motion for judgment on the pleadings was presented, it was not then insisted that the question involved had been previously urged upon Judge Moran and determined by him. From a failure so to do, we may infer that the appellant did not then consider that the identical question had been determined by Judge Moran. But, be this as it may, Judge Moran having expressly refused to determine the force of the decree of the West Virginia court upon the motion to dismiss, the contention now made is utterly without merit. State v. Board, 12 Nev. 17. On the other hand, had he considered and determined it, as it is now contended he did, we are clearly of the opinion that by failure to raise the objection at the time the motion for judgment on the pleadings was heard, appellant waived any right he may have had so to. do (Schudel v. Helbing, 26 Cal. App. 410, 147 Pac. 89), and therefore was not entitled to raise the point on motion to vacate the j udgment.

The order appealed from is affirmed.