ROBERT E. VICKERS, Appellant, v. VICTORIA T. VICKERS, Respondent
Vickers v. Vickers
ROBERT E. VICKERS, Appellant, v. VICTORIA T. VICKERS, Respondent.
[No. 2492]
ROBERT E. VICKERS, Appellant, v. VICTORIA T. VICKERS, Respondent.
[199 Pac. 79; 202 Pac. 32]
1. Motions' — Judge May Rule on Effect of Former Decree on Motion for Judgment on Pleadings, though Once Considered on Motion to Dismiss.
In a divorce suit where one district judge expressly refused to determine the force of the decree of another state court upon motion to dismiss, another district judge, upon a later motion for judgment on the pleadings, was not deprived of jurisdiction to determine the question by district court rule 11, par. 4; providing that no motion once heard and disposed of shall be renewed in the same cause nor shall the same matters therein embraced, except on leave of court granted upon motion and notice to the adverse parties.
2. Judgment — Objection of Prior Determination by Another Judge Cannot Be Raised on Motion to Vacate Judgment on • Pleadings.
The objection that a question, presented upon motion for judgment on the pleadings, had been previously determined by another judge upon denial of a motion to dismiss and thereby foreclosed under district court rule 11, par. 4, should have been made when the motion for judgment on the pleadings was made, and could not be raised on motion to vacate the judgment on the. pleadings on the ground that the court had no jurisdiction to enter it because the same matter had been heard and determined by the other judge who denied the motion to dismiss.
ON PETITION FOR REHEARING
1. Judgment — 'Adjudication of an , Issue Does Not Deprive Court of Jurisdiction to Again Adjudicate It.
The mere fact that an issue has been once adjudicated does not oust the same or any other court of jurisdiction to hear and determine it again, since the defense of former adjudication is new matter which must be pleaded if an opportunity is afforded to do so, or, if no opportunity is afforded, must be presented by way of competent evidence when the issue is in process of adjudication a second time; and if the defense is not so presented, the court has jurisdiction to enter a binding judgment not open to attack by way of a motion to set it aside on the ground of former adjudication.
2. Judgment — Answer Held to Sufficiently Plead Former Adjudication.
In divorce suit on ground of cruelty, answer alleging that plaintiff defended a previous action against him by defendant for separate maintenance on the ground of cruelty, and alleged in answer in such action the same matters to constitute cruelty as were alleged in his complaint in the divorce action, and that defendant had been given decree in her former action, held to raise issue as to former adjudication, notwithstanding failure to incorporate in the answer the pleadings, proceedings, and decree in the former action.
Appeal from Second Judicial District Court, Washoe County; Edward F. Lunsford, Judge.
Divorce suit by Robert E. Vickers against Victoria T. Vickers. From order refusing to set aside judgment for defendant, plaintiff appeals.
Affirmed. Petition for rehearing denied.
H. V. Morehouse, James Glynn, and Platt & Sanford, for Appellant:
The trial court is without jurisdiction to pass upon an order previously made by a court of coordinate j urisdiction, if such order affect a substantial right. Silver & Co. v. Waterman, 111 N. Y. S. 456; Heischober v. Polishook, 136 N. Y. S. 567; Sloan v. Beard, 110 N. Y. S. 1; Blaustein v. Lyon, 132 N. Y. S. 387. The identical facts were before the court by the renewed motion as when the motion was originally made. It is immaterial whether the renewed motion was urged after additional pleadings had been filed, or were made upon new papers. The test is as to whether the facts themselves have been changed. “The new matter which will alone justify renewal of a motion without leave must be something which has happened, or for the first time come to the knowledge of the party moving, since the decision of the former motion.” 14 Ency. PI. & Pr., p. 182. “The new motion is the same as the old motion if the relief demanded is the same;' and it is not made upon new facts merely because made oh new papers.” Goldenberg v. Adler, 123 N. Y. S. 387.
Cheney, Downer, Price & Hawkins, for Respondent.
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.
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.