Opinion
19184.
ARGUED JANUARY 9, 1956.
DECIDED FEBRUARY 15, 1956.
Divorce. Before Judge McWhorter. Chatham Superior Court. September 27, 1955.
Aaron Kravitch, for plaintiff in error.
Bert Meyer, William H. Young, Jr., contra.
1. The judgment of the court below denying the plea of res judicata in this case was not error.
2. The evidence authorized the finding that a common-law marriage existed between the parties to this suit.
ARGUED JANUARY 9, 1956 — DECIDED FEBRUARY 15, 1956.
Lauretta Jones Brown brought suit against Charles Brown, seeking a total divorce and temporary and permanent alimony, and contending that she was the common-law wife of the defendant. The defendant filed a plea of res judicata and answer to the suit. The case was submitted to the judge without the intervention of a jury, and upon the hearing the plea of res judicata was denied; and the petitioner was awarded a divorce, permanent alimony, and attorney's fees. All other prayers of the petition were denied. The defendant filed a motion to modify and set aside the judgment granting the plaintiff a divorce, contending that the denial of his plea of res judicata was error, and that the evidence did not support the findings of the judge.
The plea of res judicata set out substantially the following facts. The defendant in the instant case, Charles Brown, previously had filed a suit seeking to enjoin the present plaintiff, Lauretta Jones Brown, from entering his place of business and unlawfully interfering with him in the management of his business, and to have the court decree that she had no interest in his property or business. The petition charged that said defendant had entered upon his property claiming to be the common-law wife of the petitioner. In response to the petition, Lauretta Jones Brown filed an answer, in which she contended that she was the common-law wife of Charles Brown, and that she gave him certain money to invest for her without any accounting until she demanded it, and that she had now demanded and had been refused. She prayed that the prayers of the petition be denied and that she have certain other relief. She also filed demurrers to the petition.
The attorneys representing the defendant subsequently withdrew from the case, and the judge entered an order dismissing the answer and the demurrers of the defendant and gave her fifteen days in which to file defensive pleadings, otherwise the case to be in default. No defensive pleadings were filed, and a default judgment was entered in favor of the plaintiff, enjoining the defendant from coming upon described property of the plaintiff, and decreeing that the defendant had no interest in the said property and place of business.
Thereafter, the defendant in the injunction suit above referred to, brought this suit against the plaintiff therein, alleging that she was the common-law wife of the plaintiff in the above suit by virtue of facts set out in the petition for divorce. The motion to modify and set aside the judgment for divorce was duly denied. The exception here is to that judgment.
1. It is contended by the plaintiff in error that by the judgment in the injunction suit above referred to it was determined, or under the rules of law it could have been determined, that the defendant in error was not the common-law wife of the plaintiff in error, and that this judgment is res judicata on the question of whether or not there was a common-law marriage subsisting between the parties to this action. We can not agree with this contention. The doctrine of res judicata is that all matters which were in issue or which under the rules of law could have been put in issue in a former suit between the same parties upon the same cause of action are barred so long as the former judgment stands unreversed. This rule of law does not apply to the facts in the instant case, since the present action is not upon the same cause of action as the former suit which is pleaded as a bar to the instant suit, the former suit being for an injunction to restrain an unlawful interference with property rights, and the instant suit being a suit for divorce.
If it be insisted that the plea in the instant suit is not a plea of res judicata, but is instead a plea of estoppel by judgment, it would still not apply to the facts in the instant case. The doctrine of estoppel by judgment differs from the plea of res judicata, in that, while res judicata applies only as between the same parties and upon the same cause of action to matters which were actually in issue or which under the rules of law could have been put in issue, estoppel by judgment applies as between the same parties upon any cause of action to matters which were directly decided in the former suit. In the instant case, it was not decided directly or otherwise that the plaintiff in the instant case was or was not the common-law wife of the defendant. Whether or not the defendant in the injunction suit was or was not the wife of the plaintiff in that suit would not and did not determine whether or not the plaintiff was entitled to an injunction restraining an unlawful interference with his property rights, since one spouse may restrain the other from an unlawful interference with property rights. Lemon v. Lemon, 141 Ga. 448 ( 81 S.E. 118); Lyon v. Lyon, 102 Ga. 453 ( 31 S.E. 34, 42 L.R.A. 194, 66 Am. St. R. 189); Blanton v. Blanton, 163 Ga. 361 ( 136 S.E. 141).
It follows, therefore, the former judgment granting to the husband an injunction is not res judicata a nor an estoppel by judgment upon the question of whether or not there was a marriage subsisting between the parties in the instant suit.
2. It is next contended that the evidence was not sufficient to support the finding that a common-law marriage existed. The evidence upon this question was in sharp conflict. This being true, the judgment of the court below finding that there was a valid common-law marriage subsisting between the parties will not be disturbed.
It follows from what has been said above, the judgment complained of was not error for any reason assigned.
Judgment affirmed. All the Justices concur.