APPEAL from the Circuit Court of Sangamon County; the Hon.
CREEL DOUGLASS, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a decree for partition entered by the Circuit Court in favor of the plaintiff, Ottilie Kratzer, who was defendant's wife. The property in question was acquired by warranty deed by plaintiff and defendant as joint tenants in 1943. They had occupied the premises for a number of years as homestead.
Plaintiff and defendant were married in 1938 and lived together as husband and wife until February, 1961, at about which time plaintiff was adjudicated mentally incompetent and committed to a State Hospital. On August 27, 1962, plaintiff was adjudged recovered and was restored to her civil rights. The parties have not lived together, however, since the adjudication of incompetency, and defendant has refused to admit the plaintiff to the home since her restoration.
After plaintiff's restoration on November 16, 1962, she filed simultaneous actions for divorce and to partition the property in question. The divorce suit alleged desertion by the defendant. It alleged that the plaintiff and defendant were joint owners of the property in question and requested a determination of the property rights of the parties. It also alleged that defendant had withdrawn $10,000.00 from a joint savings account, and $1,000.00 from a joint checking account and secreted them from plaintiff. It alleged joint ownership of $500.00 in U.S. Savings Bonds, and of an automobile. Plaintiff prayed for a divorce and for adjustment of property rights in the real and personal property. Defendant answered the divorce suit and alleged that the acquisition of title as joint tenants was for convenience only, and without intent of defendant to make or plaintiff to receive a gift, and made like allegations as to the bank accounts and U.S. Government Bonds. The plaintiff's suit for divorce was, after notice, dismissed for want of prosecution on February 3, 1966.
The real estate was purchased with a down payment of $1,475.00, which was drawn from the joint checking account. The property was purchased subject to an existing mortgage which was paid off before the parties separated from funds which originated in defendant's salary. There is testimony that there were some improvements which were paid with money from the same source. There is testimony that the plaintiff and her brother helped in painting the house. At some time shortly after plaintiff's adjudication of incompetency, defendant transferred the joint savings account of about $7,000.00 and the joint checking account of about $800.00 to accounts in his individual name. Defendant testified that at various times when they were living together he closed the joint checking account to shock his wife a little, and then restored the account. The evidence shows that defendant had paid the taxes and insurance premiums since he changed the bank accounts to his individual name.
At the time of the marriage of the parties, defendant was employed by the State of Illinois, and continued in this employment up to the time of the suit. Plaintiff was never employed during the marriage until after the separation and was occupied solely as a housewife, although there is some testimony that for about eleven months she helped take care of defendant's mother and father. Plaintiff brought about $200.00 to the marriage which was spent for common purposes. From the beginning, plaintiff and defendant had a joint checking account and later, additionally, a joint savings account, all of which came from defendant's salary.
On April 10, 1968, defendant filed an amended answer to the partition suit alleging two defenses with an alternate to the second defense. The first defense is that the divorce suit, having been dismissed for want of prosecution, had as a matter of law been adjudicated upon its merits and said divorce suit was a suit between the same parties as the partition suit. It asserted that the divorce action, in claiming the property rights and in praying for an adjustment thereof in respect to the same property as that involved in the partition suit was a suit covering the same property right now claimed in the partition, and the issue was determined against plaintiff by reason of the operation of the dismissal order as an adjudication upon the merits. It should be stated that defendant's answer to plaintiff's suit for divorce denied the charge of desertion, which was the basis of the divorce action.
Defendant cities Harris v. Chicago House Wrecking Co., 314 Ill. 500, to the effect that an order dismissing a suit for want of prosecution is an appealable order and Supreme Court Rule 273 (Ill. Rev. Stat. 1967, ch. 110A, par. 273), to the effect that unless the order recites otherwise an involuntary dismissal for any reason other than lack of jurisdiction, improper venue or failure to join an indispensable party operates as a decision on the merits. Defendant then contends that since plaintiff claimed this real estate in the divorce proceeding an adjudication was had that she was not the owner.
We do not reach the issue as to whether the dismissal pursuant to the authority of Supreme Court Rule 273 is an adjudication on the merits which makes operative the judicial doctrine of res judicata. Prior to the adoption of this Rule it was held that dismissal for want of prosecution created the status of an involuntary non-suit. See Casillas v. Rosengren, 86 Ill. App.2d 139, 229 N.E.2d 141, and its cited authorities. Neither party has briefed the effect of the statutory amendment in 1967, (Ill. Rev. Stat. 1967, ch. 83, par. 24a), which authorizes the filing of a new action where a suit has been dismissed for want of prosecution. Supreme Court Rule 273, as presently stated, provides that an involuntary dismissal operates as an adjudication on the merits, "Unless * * * * a statute of this state otherwise specifies * * * *".
• 1 Plaintiff's parallel and simultaneous actions were founded on entirely separate and distinct statutes which were operative upon different categories of legislatively determined and stated rights and interest. The doctrine of res judicata is not operative under these circumstances. As stated in Chas. Ind. Co. v. Cecil B. Wood, Inc., 56 Ill. App.2d 30, 205 N.E.2d 786: "If a former adjudication is raised as a complete bar against a second action, both as to those matters actually adjudicated in the first action and as to those matters which could have been raised therein, there must be, as between the actions, identity of parties, of subject matter and of cause of action." See also Harding Co. v. Harding, 352 Ill. 417, 186 N.E. 152. Within such rule the causes of action are not the same.
• 2 Upon the circumstances before us, defendant cannot successfully interpose the defense of estoppel by verdict, sometimes called collateral estoppel by judgment. (Cohen v. Schlossberg, 17 Ill. App.2d 320, 150 N.E.2d 218.) In Harding Co. v. Harding, 352 Ill. 417, 186 N.E. 152, such form of estoppel was limited to the language: "When the second action between the same parties is upon a different cause of action, claim or demand, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined." See also City of Chicago v. Provus, 115 Ill. App.2d 176, 253 N.E.2d 182.
In the divorce proceedings, plaintiff asserted joint ownership in the property and sought relief upon equities resulting from the marital status. Such relief is statutorily distinct from the right of partition. Thus there is neither identity of cause of action supporting the defense of res judicata nor an actual litigation upon the merits of her interest in the real estate within the rule of collateral estoppel by judgment.
Defendant cites Harding Co. v. Harding, 352 Ill. 417, 186 N.E. 152; Allendorf v. Daily, 6 Ill.2d 577, 129 N.E.2d 673, and Bandringa v. Bandringa, 20 Ill.2d 167, 170 N.E.2d 116. These cases cited by the defendant are consistent with the principles adopted here. In each of the latter cases, there had been a specific issue determined upon the merits in litigation between the same parties.
The second defense is that the money with which the property was purchased belonged to the defendant and that plaintiff did not acquire the normal rights of a joint tenant because defendant had no intention of making a gift to plaintiff. Plaintiff contends, however, that where a husband places money in a joint bank account with himself and his wife or purchases real estate in their names as joint tenants, there is a presumption of a gift which is ...