
    Lewshitz v. Lewshitz et al.
    (Decided December 9, 1929.)
    
      Messrs. Dunlap, Stephens <& Stephens, for plaintiff in error.
    
      Mr. V. J. Conrad, for defendants in error.
   Lemert, P. J.

The parties hereto stand in an order the reverse of that held in the court of common pleas, and they will herein be referred to as plaintiff and defendant as they stood in the court below.

This action was originally commenced by the plaintiff, Magdalena Lewshitz, against the defendant, Ignatius Lewshitz, on the 14th day of December, 1928, in the court of common pleas of Cuyahoga county, for divorce, custody of minor children, alimony, injunction and equitable relief.

In her petition the plaintiff charged the defendant with being guilty of extreme cruelty by striking and beating her, and otherwise ill-treating her, and guilty of gross neglect of duty in that he failed to support her and the children, although capable of earning sufficient money to do so.

To the petition of plaintiff the defendant answiered by denying plaintiff’s charge and claim of extreme cruelty and gross neglect of duty on his part toward her. Further answering the defendant alleged that on the 20th day of January, 1928, the plaintiff in a former suit against him filed her petition for divorce, alimony, custody of children, injunction and equitable relief, the same being case No. 292,113, in the common pleas court of Cuyahoga county, alleging therein the same course of conduct on his part toward her, and asking for the same relief, and that on the 21st day of June, 1928, this former suit for divorce was tried in said court of common pleas, the court finding and holding that she was not entitled to the relief prayed for in her petition; that upon the overruling of a petition filed by her for a new trial of this former suit she filed her petition in error in this court, asking a reversal of the finding and judgment of the common pleas court against her.

After hearing had on this former suit this court, on December 17, 1928, rendered its decision and made the following entry, to wit: “To Court: Dismissed at posts of plaintiff in error to which judgment is rendered. Plaintiff in error to pay costs. Mandate to issue. No record.”

The plaintiff in error in the present action, in his cross-petition filed in the court below, charged the defendant in error with gross neglect of duty and extreme cruelty toward him, and asked that the petition be dismissed, that he be divorced, that he have the custody of the minor children, that the money in the bank amounting to $6,406.10 be awarded to him, and that he be granted equitable relief. The defendant in error in her reply denied all charges of gross neglect of duty and extreme cruelty alleged in the cross-petition. After hearing all the evidence the common pleas court on the 12th day of June, 1929, found and held that the husband was guilty of extreme cruelty toward his wife, and gave her a divorce ; awarded the custody of the minor children to the Parmadale Children’s Village of St. Vincent De Paul until further order of the court, and gave the wife $50 alimony, with judgment against the husband for costs.

After and within three days from the rendition of that judgment by the court of common pleas the husband filed his motion asking that the finding and judgment of the court be set aside for the reasons set forth in said motion, and that- a new trial be granted him. The court overruled this motion, to wihich ruling exceptions were noted.

Plaintiff in error seeks a reversal of the finding and decree of the common pleas court in this ease for the following reasons, to wit:

First, that the finding and judgment of the common pleas court is against and contrary to the evidence and the law of the ease.

Second, that the trial court erred in refusing to make any disposition of the money in the hanks in the joint name of Mr. and Mrs. Lewshitz.

Third, that the finding and judgment of the court in the former suit between the same parties for .divorce was and is a bar to the prosecution of this suit on the same ground and upon the same facts alleged and fully determined in said former suit.

To the first attempt of the wife on the trial of the present case in the common pleas court to offer evidence of what occurred between the parties before the trial of the former suit for divorce on the 21st day of June, 1928, the husband objected for the reason that all such acts and conduct of the parties had been adjudicated in said former action, which objection was overruled by the court.

We believe that this holding and ruling of the court below was error, and reversible error, for the reason that in the former suit the wife was called upon to make good her cause of action for divorce, and this she must do by all proper means within her control, and that thereby all matters within the scope of the former suit are put to rest by the final determination of that suit. McCord v. McCord, 7 Ohio App., 129, 29 C. D., 429, 28 O. C. A., 137; Covington & Cincinnati Bridge Co. v. Sargent, 27 Ohio St., 233; Roby v. Rainsberger, 27 Ohio St., 674; Petersine v. Thomas, 28 Ohio St., 596; Strangward v. American Brass Bedstead Co., 82 Ohio St., 121, 91 N. E., 988.

Where a petition for divorce has been dismissed upon a hearing upon the merits in a .case where the court had jurisdiction of the person and the subject-matter, such order and judgment of dismissal are a bar to future proceedings in a new, action in any court as to all grounds for divorce alleged in the petition so dismissed; or that were known to the plaintiff to exist at the time of the filing of such petition. Mullen v. Mullen, 11 N. P. (N. S.), 353, 21 O. D., N. P., 356.

Counsel for the wife sought on the trial to avoid defendant’s plea in bar by an entry of the common pleas court made on the 21st day of March, 1929, in the former suit, which entry was made nine months after the final disposition of the former suit, which entry reads: “This case is dismissed by plaintiff without prejudice at costs of plaintiff for which judgment is rendered, record waived.”

This entry We believe is without force or effect for the reason that there was no action then pending in the court of common pleas in which the court could make such entry. The entry finally disposing of the case was made by the common pleas court on June 21,1928, and this entry stands unaffected by the dismissal entry of March 21,1929.

Thus finding and holding that the court below committed an error as hereinbefore explained, it is unnecessary in this opinion to comment upon the other assignments of error mentioned in plaintiff’s petition in error, but which.were not stressed by plaintiff in error in oral argument in this case. It therefore follows that the entry and judgment of the common pleas court hereinbefore made are declared null and void and held for naught, and the finding and judgment of the common pleas court is hereby reversed, and judgment rendered against defendant in error for costs.

Judgment reversed.

Sherick, J., concurs.

Lemert and Sherick, JJ., of the Fifth Appellate District, sitting by designation in the Eighth Appellate District.  