
    MILLS v MILLS
    Ohio Appeals, 2nd Dist, Montgomery Co
    No. 1036.
    Decided Feb 3, 1931
    Irvin C. Delscamp, Dayton, for plaintiff in error.
    William Swaney, Dayton, for defendant in error.
   HORNBECK, J.

Three claims of error are urged. The first and second, in our judgment, are substantially the same and come under the head of res adjudicata. The third is based upon the claim that there was insufficient evidence to sustain the action of the trial court.

Under our view of the base it is only necessary to consider the one error urged, viz, res adjudicata. Without extended discussion, suffice to say that there is no doubt from the state' of the record as it comes to us that the case presented in the second petition had clearly been adjudicated when the . decree was entered on the first action in divorce. The identity of action, subject matter and<parties is complete. There is an uniformity of authority holding that under such a situation all the elements of a former adjudication are present.

This case does not present a question of a determination of the right of a trial court to modify its decree during term, because that procedure was not attempted here. The first decree comes to us without change.

One of the best considered cases in Ohio on res adjudicata as relates to divorce is that of Mullen vs. Mullen, 11 N. P. (N. S.) 353.

..We therefore reverse and remand this case to the trial court in accordance with this opinion with instructions to enter decree for defendant in his defense of res judicata.

Kunkle and Allread, JJ, concur.  