Lynn v. Lynn

Citations

• 95 Kan. 141
• 147 P. 1117
• 1915 Kan. LEXIS 183

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Trial—Divorce Refused — Second Action BeguvAGrounds Arising Subsequent to First Trial Not Res Judicata. In an action for divorce brought by the husband, in the district court of Montgomery county in February, 1910, the wife filed a cross-petition asking that the divorce be granted to her on the ground of his extreme cruelty and gross neglect of duty. There was a hearing in November, 1911, when the court took the case under advisement, but recommended that the parties try living together again as husband and wife. In April, 1912, the wife made an application for a further hearing, alleging that the defendant continued to treat her with extreme cruelty. There was a hearing upon this application in October, 1912, and at the same term in November, 1912, a final judgment was rendered refusing a divorce to either party, but awarding the custody of the children to the wife and providing for a division of the property. On the 14th day of March, 1913, the wife, having removed to Chautauqua county, brought an action for divorce in the district court there, and alleged extreme cruelty and gross neglect of duty; the defendant filed a plea of res judicata, alleging that the matters had been adjudicated in the former action. Held, that a judgment in the wife’s favor based upon evidence of acts occurring subsequent to the filing of the pleadings in the former action will be sustained.</p> <p>2. Same— Competent Evidence on Second Trial. In determining whether a divorce should or should not be granted in such a case the court may properly take into consideration facts showing the failure of the parties to live happily together prior to and during the pendency of the former action.</p> <p>3. Same — Custody of Children — No Conflict of Jurisdiction. Since the district court of Chautauqua county made the same order with respect to the custody of the children as was made by the district court of Montgomery county, there is no room for confli