Moorehouse v. Moorehouse

Opinion by

Beaver, J.,

Judgment was properly entered in the court below upon both of the points reserved at the trial. It is not necessary to recapitulate or to endeavor to reinforce the reasons therefor which have been so clearly and convincingly stated by the trial judge in the opinion and decree overruling the motion for judgment non obstante veredicto. If, in pursuance of the alleged agreement between the parties at the time of their separation as husband and wife, the husband had given the wife separate notes for the several instalments falling due under the said agreement, they could not have been hers more fully than were the instalments as they fell due under the agreement, as found by the jury. The wife was, therefore, entitled to maintain her action under the provisions of the act of 1893, and the question as to the repeal of the act of 1879 was not a practical one and was wholly unimportant.

As to the second point reserved, “ That, if it be found that the record of the justice given in evidence and taken in connection with the justice’s testimony is binding upon the plaintiff, then judgment to be entered for the defendant, if there be a verdict for the plaintiff, with leave to the court to enter judgment on the verdict for the plaintiff, if the court decide that that is not binding,” a comparison of dates will tend to clearness of apprehension as to the real question involved.

In October, 1893, the plaintiff brought the present suit against the defendant before an alderman, claiming a balance due her under the alleged agreement for maintenance. Judgment was rendered by the alderman in favor of the plaintiff and the defendant took an appeal which was entered in the common pleas January 3,1894. On the 16th of March, 1895, the appeal from the prior judgment being still pending, the plaintiff brought suit against the defendant before the same alderman “to recover additional moneys claimed to be then due to her on the same agreement.” In this action the alderman rendered judgment for the defendant, from which no appeal was taken. If it were not so stated, by the appellant, the presumption would be that the second suit was brought for a different cause of action than that upon which the first suit was founded. The defendant, however, attempts to rebut this presumption by introducing in evidence the docket of the alderman, together with his oral testimony', to show that the judgment of the alderman was based upon a finding that the plaintiff was not entitled to recover under the alleged agreement on the merits of the case, but the testimony so introduced answers itself, for the docket of the alderman shows not that he had rendered judgment upon the right of the plaintiff to recover under the agreement but “ from the fact that no agreement can be found in which defendant has agreed to pay plaintiff any amount,” which was explained and emphasized by his oral testimony, in which it appeared that the plaintiff had claimed the existence of a written contract which was in the hands of her attorney but which, upon inquiry, he failed to find. How this testimony could in any way tend to invalidate the claim of the plaintiff made in the former suit or could defeat her right to recover in the trial of the appeal from the judgment rendered in that suit we are at a loss to discover.

It is not necessary to refer to the authorities cited by the court below.

The judgment is well founded in reason and upon authority and is, therefore, affirmed.