
    No. 381
    CSERNAK v. RAE, et al
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5401.
    Decided Jan. 12, 1925.
    1027. RES ADJUDICATA—Decision not appealed from or error prosecuted, dismissing petition to quiet title, held res adjudicata notwithstanding wife di dnot join as a party therein.
    Attorneys—Acker & Wald for Csernak; Tolies, Hogsett, Ginn & Morley for Rae; all of Cleveland.
   VICKERY, P. J.

This cause was brought up on appeal from the Cuyahoga common pleas. Margaret Cser-nak brought an action in that court to quiet title on a strip of land between her home and that of Robert Rae. The fee of the strip was owned by Csernak and next to it, Rae owned a strip 20 feet wide which entire width was occupied by the house and porch, so there was no means of ingress or egress to the back part of his lot except through the house.

It appears that Gustav Barta, the predecessor, in title to Csernak had brought a similar suit and the court in that case had dismissed Barta’s petition to quiet title. Rae in the instant case plead res adjudicata and the lower court upon this plea found in favor of Rae, that is did not quiet title as requested by Csernak.

On appeal, Csernak maintained that the plea of resajudicata should have been refused because in the Barta case, his wife had not been a party to the suit and she was a. joint owner. The court of appeals held:

Even though the wife was not a party to the suit in the Barta case, the husband introduced the same defense that she might have-introduced had she been a party to the record, which shows that she was represented in court and had a full knowledge of the case that was going on, and that the husband was defending in his name for her as well as for himself.

The judgment in the Barta case was not appealed from or error prosecuted and it became the law of that strip of land and the res adjudicata doctrine does apply to this case.

Csernak is not entitled to relief sought, and petition will be dismissed and a decree for Rae upon his cross petition will be entered.  