Hendrick v. . Biggar

Hiscock, J. This action was brought to recover damages for the alleged alienation of the affections of respondent’s husband by appellant and thus far has resulted in the affirmance of a judgment for thirty thousand dollars for such cause. The respondent sought to establish her cause of action by proof amongst other things of adultery by her husband with the appellant. Part of this proposed proof consisted of parol testimony concerning the relations of said parties. But in addition to this there was offered a judgment roll in an action brought by respondent against her husband wherein she was awarded an absolute divorce on the ground of his adultery with the appellant and this judgment roll was received, not under a plea of former adjudication, but as evidence. Its reception in this manner, over proper objections, presents the main questions which have been argued on this appeal and which are the only ones necessary to be considered. These questions are, first, whether a judgment in a divorce action may under the provisions of section 1757 of the Code of Civil Procedure become an adjudication binding the co-respondent as to issues of adultery tried in such action where the co-respondent has become a party to such action as provided in said section and contested, Or suffered default as to said issues after appearing to defend; and, second, if this question be answered in the affirmative, whether the evidence in this case establishes that appellant did so become a party to the divorce action in question and *443 to the trial of the issues therein as to he hound by the judgment and make it evidence against her in this action. So far as concerns the first question we believe that a co-respondent may so become a party to a divorce action wherein allegations of adultery are made against him that he will be bound by the adjudication therein at least for such purposes as are here involved. Section 1757 of the Code, subdivision 2, provides: “In an action brought to obtain a divorce on the ground of adultery, the plaintiff or defendant may serve a copy of his pleading on the co-respondent named therein. - * * If no such service be made, then at any time before the entry of judgment any co-respondent named in any of the pleadings shall have the right, at any time before the entry of judgment, to appear either in person or by attorney, in said action and demand of plaintiff’s attorney a copy of the summons and complaint, which must be served within ten days thereafter, and he may appear to defend such action, so far as the issues affect such co-respondent. In case no one of the allegations of adultery controverted by such co-respondent shall be proved, such có-respondent shall be entitled to a bill of costs,” etc. This appeal presents for consideration one of the second class of cases where the co-respondent had not been originally served with a copy of the summons and complaint, but voluntarily appeared and demanded service of the latter, and in the first instance we shall consider an assumed case where the judgment roll in the divorce action duly discloses that a co-respondent has thus appeared-and joined issue and contested the allegations of adultery made against him or, after service of the complaint and appearing to defend, has been duly placed in default on the trial of such issues. In such a case we see no reason why a judgment based upon the trial of such issues should not be an adjudication as to and binding upon such co-respondent. It is true that this section provides for a somewhat anomalous practice *444 and that a co-respondent acting under it does not in the ordinary manner become a party to the action and to the j udgment rendered therein. Nevertheless, he does become a party to it in a manner which, although qualified, gives him a full opportunity to defend against and contest the particular allegations which affect him. Thus there is afforded that opportunity for a full and complete trial of these issues which calls for the application of the fundamental principle governing the general doctrine of res adjudicata that a party shall not be heard a second time on an issue which he has once been called upon and permitted to try and contest. We do not think, however, that the evidence presented in this action of appellant’s alleged participation in the divorce action so brings her within the principle which we have just stated as to make said judgment binding on her. The judgment roll does not in any manner disclose that she became a party to said divorce action. Evidence was offered outside of said judgment roll to the effect that she appeared in the action and demanded a copy of the complaint, and that a copy of said complaint was served upon, the attorney who served this notice of appearance. It appears, however, that said attorney also represented the defendant in said action and it is not made at all clear that a copy of the complaint was served on him by reason of his appearance for this appellant rather than as attorney for the defendant in the divorce action. But in addition to this, there is no further evidence disclosing appellant’s relations to said action. The judgment roll would seem to make it reasonably plain that she did not appear on the trial of the action and contest the allegations of adultery with her and there is no evidence to show that she ever answered in the action or that she was properly placed in default in not appearing upon the trial. Under these circumstances and with such absence of proof we are not willing to hold that she is hound by the judgment. *445 Properly the judgment roll itself should disclose the appearance by the co-respondent in such an action and that he either has appeared upon the trial or has been placed in default after appearing to defend, and we are not disposed to hold that the omission of the judgment roll so to do may be made good by extraneous evidence. But even if we were thus disposed to hold, the evidence in this case entirely fails to disclose those facts which would make the judgment binding upon the appellant, and, therefore, we think the evidence was improperly admitted. It is urged that this error may he overlooked because there was other evidence tending to show the adultery of respondent’s husband with the appellant, but that contention cannot he maintained. In the first place much of the parol testimony tending to show such misconduct was given by witnesses whose interest in this action was such that them testimony presented a question of credibility for the court, and, therefore, it may have been disregarded and the finding based on the judgment in question. In the second place, such judgment roll, if properly admitted, would have been and was held to be conclusive evidence, and, therefore, precluded the appellant from making that contest upon said issue which otherwise she might have made. (Embury v. Conner, 3 N. Y. 511, 524; McCarthy v. Hiller, 26 App. Div. 588, 591.) For these reasons we think the judgment must he reversed and a new trial granted, costs to abide event. Cullen, Oh. J., Gray, Willard Bartlett, Chase, Hogan and Miller, JJ., concur. Judgment reversed, etc.