Emma L. Prall, Appellant, v. John M. Prall, Appellee, 58 Fla. 496

Whitfield, C. J. Where a final judgment or decree has been rendered by a court having jurisdiction of the subject matter and of the parties it is binding on the parties and their privies, and such final judgment or decree is a bar to another suit or action between the same parties for the same subject matter. This principle of law is- enforced by the courts so that parties may not be vexed more than once for the same cause, and that there may be an end to litigation. 24 Am. & Eng. Ency. Law (2nd ed.) 713; Lake v. Hancock, 38 Fla. 53, 20 South. Rep. 811; 56 Am. St.

Rep. 159; 11 Current Law 1537; 9 Current Law 1423; 7 Current Law 1750; 2 Andrews’ Am. Law, Par. 764. Where a final judgment or decree is rendered for the defendant on demurrer, the plaintiff is estopped from maintaining a similar or concurrent action or suit for the same cause upon the same grounds that were disclosed in the first suit or action for the reason that the judgment determines the merits of the cause as presented by the pleadings affected by the demurrer.

But where a demurrer to a pleading is sustained because essential allegations of fact wepe omitted from the pleading a final judgment on the demurrer concludes the parties and their privies only as to the sufficiency of the facts as alleged to state a cause of action.

In general a final judgment on demurrer is not a bar to a second suit or action for the same cause between the same parties as an estoppel by judgment because of the former adjudication, where the pleadings in the second suit or action supply the essential allegations omitted from the first suit or action, though the conduct of the parties in not presenting the case when an opportunity was afforded may under special circumstances operate as an estoppel in pais. Conclusions of law are not admitted by demurrer. See Gould v. Evansville & C. R. Co., 91 U. S. 526; Rowell v. Smith, 123 Wis. 510, 102 N. W.

Rep. 1, 3 Am. & Eng. Anno Cas. 773; City of North Muskegon v. Clark, 62 Fed. Rep. 694, 10 C. C. A. 591, 22 U. S. App. 522; Harrington v. Harrington, 189 Mass. 281, 75 N. E. Rep. 632. Where the second suit is upon the same cause of action and between the same parties as the first, the final judgment in the first suit upon the merits is conclusive in the second suit as to every question that was presented or might have been presented and determined in the first suit.

When the second suit is upon a different cause of action, but between the same parties as the first, the judgment in the first suit operates as an estoppel in the second suit only as to every point and question that was actually litigated and determined in the first suit, and the first judgment is not conclusive as to other matters that might have been, but were not, litigated or decided. The test of the identity of causes of action, for the purpose of determining the question of res adjudicaba, is the identity of the facts essential to the maintenance of the actions.

It is of the essence of estoppel by judgment that it be made certain that the precise facts were determined by the former judgment. If there is any uncertainty as to the matter formerly adjudicated, the burden of showing it with sufficient certainty by the record or extrinsically is upon the party who claims the benefit of the former judgment. Fulton v. Gesterding, 47 Fla. 150, 36 South. Rep. 56; Harrison v. Remington Paper Co., 140 Fed. Rep. 385, 3 L. R. A. (N. S.) 954, 5 Am. & Eng. Anno Cas. 314; Rowell v. Smith, 123 Wis. 510, 102 N. W. Rep. 1, 3 Am. & Eng. Anno. Cas. 773; Draper v. Medlock, 122 Ga. 234, 50 S.

E. Rep. 113, 2 Am. & Eng. Anno Cas. 650; Russell v. Place, 94 U. S. 606; DeSollar v. Hanscome, 158 U. S. 216, text 221; Thompson v. Bushnell Co., 80 Fed. Rep. 332; Rogers v. Higgins, 57 Ill. 244.

The first suit between the parties was for a divorce upon the statutory ground of “habitual indulgence by defendant in violent and ungovernable temper.” While the trial court granted the divorce upon the allegations and proofs, this court, on appeal, held the allegations of facts to be insufficient to state a cause of action, as the conclusions of law stated in the bill of complaint were not sustained by the facts alleged, and also held that the proofs were insufficient to warrant a decree of divorce. The bill was ordered to be dismissed.

The decree in the former suit is, therefore, conclusive only as to the material facts alleged and shown therein. Prall v. Prall, 56 Fla. 521, 47 South. Rep. 916. See also McKinnon v. Johnson, 57 Fla. 120, 48 South. Rep. 910, and authorities there cited. This second suit between the same parties as plaintiff and as defendant is for a divorce upon the statutory grounds of “extreme cruelty by the defendant to complainant,” and of “wilful, obstinate and continued desertion of the complainant by the defendant for one year.” It is consequently not for the same cause of action.

The material facts alleged in the first suit, in so far as they affect this suit are that for some time past “the defendant seemed to grow tired of her condition in life and surroundings, having become very irritable, quarrelsome, and otherwise disaffectionate to complainant, continually finding fault with” him. “Matters grew worse, the defendant on divers occasions indulging in outbursts of temper, abusing complainant unmercifully until on or about October 10, 1907, complainant’s life became a burden instead of a pleasure, at which time he left his home and has never returned.” “Wherefore charges the defendant with having been guilty of an indulgence of a violent and ungovernable temper towards” complainant.

The only proof was the complainant’s testimony that “my wife continually displayed a violent and ungovern able temper toward me, until on or about the 15th day of October, without any provocation whatever, my wife flew into a violent rage of temper, abusing me for everything imaginable. I then turned over all my property to her. * * * I then left. My home had become such, on account of my wife’s display of temper, that my life was a burden to me. I lived with her until I became fully convinced that I could stand it no longer.

I at all times treated her with kindness and affection, providing for her the best my circumstances and condition in life would permit.” By reference to the bill of complaint set out in the statement it will be seen that the facts here alleged are not in substance the same as those alleged in the first suit as above stated, and also that the decree-here sought is upon grounds different from those of the first suit. This being so under the principles above stated, the plea of res adjudicata was properly overruled.

It does not now appear that the conduct of the plaintiff operates as an estoppel in pais to prevent the prosecution of this suit for divorce. While the welfare of society demands exemption from unnecessary and vexatious divorce litigation, the principies of res adjudicata should not be so applied as to prevent one determination of every distinct cause of action under the statutes authorizing divorces for specific and separate species of misconduct. See Lea v. Lea, 99 Mass. 493, S. C. 96 Am. Dec. 772.

The appeal herein is taken solely from the interlocutory order overruling the plea of res adjudicata, therefore the assignment of error based upon the order overruling a demurrer to the bill of complaint cannot be considered. Where the appeal is not from a final decree but only from an interlocutory order or decree, errors assigned on other interlocutory orders not specifically appealed from will not be considered by the appellate court. City of Miami v. Miami Realty L. & G. Co., 57 Fla. 366, 49 South. Rep. 55.

Where it appears to the appellate court that a bill of complaint does not state a cause of action, the court may make appropriate orders with reference to such defective pleading even though the question of the sufficiency of the pleading is not in any way presented to the court for its action. See City of Jacksonville v. Massey Business College, 47 Fla. 339, 36 South. Rep. 432; Florida Packing Ice Co. v. Carney, 49 Fla. 293, 38 South. Rep. 602.

It is not the policy of the law to grant divorces for post nuptial causes short of marital infidelity when such causes do not in fact render one of the parties incapable of performing the duties incident to the marriage status. The law authorizes the severance of the matrimonial union only when the conduct of one of the parties renders it unpracticable for the other to further perform the marital duties. Hickson v. Hickson, 54 Fla. 556, 45 South. Rep. 474.

In a suit for divorce the bill of complaint should contain allegations of all facts essential to the cause of action and to the plaintiff’s right to maintain the suit. Hancock v. Hancock, 55 Fla. 680, 45 South. Rep. 1020. The statute expressly provides that in order to obtain a divorce, except for adultery committed in this State, the complainant must have resided two years in the State of Florida before filing the bill. Sec. 1926, Genl. Stats. of 1906.

There is no allegation in the bill of complaint of the prerequisite two years residence in this State of the complainant to authorize the complainant to maintain this suit. Beekman v. Beekman, 53 Fla. 858, 43 South. Rep. 923; Donnelly v. Donnelly, 39 Fla. 229, 22 South. Rep. 648; Gredler v. Gredler, 36 Fla. 372, 18 South. Rep. 762. The extreme cruelty that constitutes the statutory ground for divorce is such conduct by the husband or wife towards the other consort as will endanger his or her life, limb or health, or as will cause a reasonable apprehension of bodily hurt.

The injury or danger of injury may be mental or physical, but it must be of such a character as to render it impracticable for the complainant to discharge with reasonable safety his or her marital duties. Mere inconvenience, unhappiness and incompatibility of temperament or disposition, rendering the marriage relation between the parties disagreeable or even burdensome will not authorize a decree of divorce for extreme cruelty. Hancock v. Hancock, 55 Fla. 680, 45 South. Rep. 1020 and authorities cited; Williams v. Williams, 23 Fla. 324, 2 South. Rep. 768; Goff v. Goff, 60 West Va. 9, 53 S. E.

Rep. 769, 9 Am. & Eng. Anno. Cas. 183, and notes. The facts alleged in this amended bill are not sufficient to constitute the statutory ground of “extreme cruelty by defendant to complainant” authorizing a divorce. Nor do the allegations warrant a decree of divorce on the statutory ground of “Wilful, obstinate and continued desertion of complainant by defendant for one year.” See Hancock v. Hancock, supra, and authorities cited; Crawford v. Crawford, 17 Fla. 180; Palmer v. Palmer, 36 Fla. 385, 18 South. Rep. 720; Phelan v. Phelan, 12 Fla. 449.

The mere refusal of a wife to accord to the husband the marital privileges lawful only to the husband is not of itself such a desertion of the husband as to authorize him to secure a divorce on the statutory ground of wilful, obstinate and continued desertion for one year. In this case the husband alleges that he “withdrew himself from respondent and from their home, and that he has not since that time lived or cohabited with her.” 14 Cyc. 612; 9 Current Law 999; 9 Am. & Eng. Ency. Law (2nd ed.) 765, 769; Fritz v. Fritz, 138 Ill. 436, 28 N. E. Rep. 1058, 32 Am. St. Rep. 156, 14 L. R.

A. 685 and notes; Anonymous (Watson v. Watson) 52 N. J. Eq. 349, 28 Atl. Rep. 467; Segelbaum v. Segelbaum, 39 Minn. 258, 39 N. W. Rep. 492; Padelford v. Padelford, 159 Mass. 281, 34 N. E. Rep. 33; Southwick v. Southwick, 97 Mass. 327. The order overruling the plea of res adjudieata from which the appeal was taken is affirmed, and the cause is remanded for further proceedings consistent with this opinion. It is so ordered. All concur except Hocker, J., absent.