APPEAL from an order granting a new trial of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Reversed and remanded with directions.
Messrs. Cunningham & Carson and Mr. Joseph T. Melczer, Jr., for Appellant.
Mr. James E. Nelson, for Appellee.
[54 Ariz. 444] ROSS, C.J.
This is an appeal from an order granting a new trial.
The plaintiff Daisy Meryln Rothman and Dick V. Rumbeck were wife and husband from January 25, 1918, to January 22, 1932. On this last date he obtained a divorce from plaintiff on the ground of desertion and thereafter married the defendant Elizabeth E. Rumbeck, who was his wife when he died on July 8, 1937. On July 26, 1937, defendant was granted letters of administration of her deceased husband's estate.
On or about October 13, 1937, the plaintiff presented to the defendant administratrix a creditor's claim for allowance as follows: One-half of the premiums paid by the community during coverture on a life policy in the Northwestern Mutual Life Insurance Company, issued to the decedent prior to his marriage to plaintiff; and one-half of their community property (other than premiums on life policy) valued, at the time
of the divorce on January 22, 1932, at approximately $3,000. [54 Ariz. 445] In the creditor's claim it is alleged that there was no division of the community property in the divorce decree, and that there had not been any property settlement or agreement of any kind as to the community property. The claim was disallowed by the administratrix and thereafter this action was instituted to collect it. There were three items in the claim and three causes of action set out in the complaint but only the first and third are involved on this appeal.
Defendant's answer to the first cause of action was an admission that the premiums were paid by deceased as alleged in the complaint but it denied that Dick V. Rumbeck at the time of his death was indebted to plaintiff for a sum of money equal to one-half of the premiums paid on said policy or was indebted in any amount; alleged that Rumbeck had the right to change the beneficiary named in the said policy and after the divorce had changed the beneficiary from plaintiff to his estate, or his heirs, executors and administrators, and that said policy was so payable at the date of Rumbeck's death; that the said Rumbeck was granted a divorce from plaintiff on the ground of desertion and that the plaintiff made no appearance in the said divorce action and made no attempt to claim or recover any interest in said policy, and that, the beneficiary having been changed in 1932, plaintiff had no right to claim any interest whatever in said policy; that defendant was the widow and only heir of said Rumbeck and entitled to all of the proceeds of the said policy.
Defendant's answer to the third cause of action was a denial, on information and belief, of the allegations of the complaint that there had been no division of the community property at the time of the divorce; a denial that there was any community property whatsoever at such time, and an affirmative allegation that all of the assets of the estate were community property of defendant and the deceased.
[54 Ariz. 446] The case was tried by the court without a jury and plaintiff was given judgment for $215.45 on her first cause of action, being one-half of the premiums advanced on the Northwestern Mutual's policy; and $875 on her third cause of action as one-half of the other community property owned by the plaintiff and deceased at the time of the divorce.
The defendant thereafter filed her motion for a new trial, which was granted. The plaintiff appeals.
While in the motion other grounds or reasons are urged, the only one that would justify the order for a new trial is that the decree in the divorce case was res judicata of the property rights of the parties. The plaintiff contends the motion should not have been granted on this ground for the reason res judicata was not set up as a defense in defendant's answer. It is urged that if defendant desired to rely on estoppel by judgment she should have affirmatively pleaded it, and not having done so she waived the estoppel, if there be one.
An examination of the evidence shows that the record of the divorce case was introduced by the defendant, on the theory that there might be "a question of estoppel in the case," without any objection on the part of the plaintiff. The authorities are divided upon the question as to whether a party can claim res judicata when he has not pleaded it. Some of the decisions hold that he may not and others that he may introduce such defense under the general issue. 34 C.J. 1055, sec. 1491; 15 R.C.L. 1045, secs. 524, 525. Although the judgment in the divorce case was not pleaded in this action as an adjudication of the property rights of the parties, it was introduced without objection and we think the defect of pleading, if there was such, was waived. The issue of res judicata was tried and we will therefore examine the case on the sufficiency of the plea; that is, we are to determine whether [54 Ariz. 447] what was adjudicated in the divorce case was res judicata of the property rights of the parties. In that case the complaint alleged that there was no community property. It prayed for a divorce and for general relief. The decree recited that the defendant (the present plaintiff) ...