APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. SAMUELS, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 9, 1974.
Plaintiff filed an action in the municipal department of the circuit court of Cook County on April 11, 1973, alleging that defendant wrongfully converted to her own use bank deposits belonging to both parties and insurance rebates intended for plaintiff. The complaint also stated that a divorce suit between the parties was pending. A motion was filed by defendant to strike the complaint. After a hearing before the Honorable Richard L. Samuels on June 8, 1973, plaintiff's complaint was dismissed without prejudice on the ground that the issues therein were or could have been litigated in prior divorce proceedings.
Plaintiff appeals on the theory that there was not, nor could there have been, a prior adjudication of his present claim. He presents the following issues for review:
1. A tort action seeking money judgment is not within the jurisdiction of the divorce court;
2. Collateral estoppel does not apply to claims in new suits under a new theory even though facts previously pleaded are the same;
3. The burden of proving res judicata is on the party urging a prior adjudication; and
4. A voluntary non-suit permits plaintiff to file anew.
On April 15, 1971, defendant herein, Irene J. Altman, filed a divorce complaint, No. 71D858, against plaintiff herein, Sidney S. Altman. He subsequently filed a counterclaim for separate maintenance which asserted, in Count II, that he had an interest in certain funds that had been withdrawn by counter-defendant and deposited in a trust account for her son, Marc H. Diament. The counterclaim alleged that one bank account had been opened by Irene J. Altman in her own name with funds derived from wedding gifts intended for both parties, and that the other bank account in which he claimed an interest was opened in the joint names of both parties and included funds derived from professional services rendered by him in connection with the sale of a building owned by counter-defendant. The counterclaim further alleged that counter-defendant received insurance checks intended to reimburse counter-plaintiff for overpayments. The following relief was prayed for: (a) an accounting by counter-defendant, and an order that she pay counter-plaintiff such funds as may be found due him, and (b) a constructive trust impressed upon trust accounts in the name of Marc H. Diament.
Counter-defendant, Irene J. Altman, filed an answer to the counterclaim in the divorce action. In her answer to Count II, counter-defendant averred that she had no knowledge as to whether wedding gifts were deposited in the account opened in her name and, if so, any amounts so deposited were nominal and long-ago spent for the mutual benefit of both parties. The answer denied that counter-plaintiff asked for financial consideration for professional services rendered in connection with the sale of her property. Further, counter-defendant denied any obligation to reimburse counter-plaintiff from insurance payments she received.
A jury was demanded by counter-plaintiff in the divorce action. On May 22, 1972, the jury returned a verdict against plaintiff on the complaint and against defendant on his counterclaim. On October 17, 1972, Count II of the counterclaim was voluntarily nonsuited by court order and judgment was entered on the verdict. The defendant filed a notice of appeal and, on January 13, 1973, the appellate court granted appellee's motion to dismiss.
On June 23, 1972, Sidney S. Altman filed a new action for divorce in No. 72D12414. By court order and over plaintiff's objections, this action was consolidated with the prior suit. On December 18, 1972, plaintiff indicated to the court that he did not wish to prosecute his complaint. On April 11, 1973, the court ordered the cause dismissed.
The instant action was filed by Sidney S. Altman in the municipal department on April 11, 1973. At issue were the same funds that were the basis for Count II of plaintiff's counterclaim in the initial divorce action. The instant complaint stated that the parties were presently living apart and a divorce suit was pending. It alleged that, one week before defendant filed her divorce complaint in No. 71D858, she withdrew all funds on deposit in two bank accounts belonging to the parties, without the knowledge or consent of the plaintiff, and wrongfully converted his one-half ownership of $5,106.43 to her own use. The complaint further alleged that defendant, Irene J. Altman, converted the balance of $480 insurance reimbursement payments due the plaintiff to her own use.
Irene J. Altman filed a motion to strike the complaint, alleging a failure to establish an ownership interest in the bank accounts or insurance reimbursement. At the hearing on defendant's motion to strike, the court dismissed the complaint without prejudice on the ground that the issues therein "were or could have been litigated in divorce division proceedings 71D858 and 72D12414." The court further ...