Cohen v. Cohen

70 So. 2d 362 (1954)

COHEN v. COHEN et al.

Supreme Court of Florida. Division A.

February 9, 1954.

Wm. J. Pruitt, Miami, for appellant.

Ross & Reinhardt, Miami, for appellees.

MATHEWS, Justice.

In this cause the appellant was granted a divorce and at the same time a property settlement which was fully set forth in a stipulation embodied in the final decree entered on the 25th day of September, 1952. Appellant was represented by a reputable attorney in that proceeding.

This suit was filed on June 1, 1953, for an accounting and other relief against the former husband, claiming that there was not a full disclosure in the first suit and that the ex-husband perpetrated a fraud upon her. Motion to dismiss was filed on *363 the ground that all matters and things set forth in the second suit are res adjudicata. The same Chancellor who heard the first suit also heard the second suit and granted the motion to dismiss the bill of complaint.

The entire file of the first suit was before the Chancellor at the time of the argument on motion to dismiss the second suit. The order on the motion to dismiss the second suit contained the following:

"* * * The allegations contained therein are res adjudicata, and have been decided and settled in the previous action, and that all matters and things contained in said bill of complaint have been adjudicated in the prior suit filed by the same plaintiff against the same defendants in Chancery Case No. 148651 in the Circuit Court. * * *"

In this suit the entire record considered by the Chancellor was not brought to this Court on appeal. In other words, the finding of the lower Court was based upon the transcript of record in the first suit and such transcript of record has not been brought before this Court. It is well settled that where the findings of the lower Court were based upon evidentiary matters or a record which is not included in the transcript on appeal, it is impossible for this Court to review the orders of the lower Court. Grantham v. Grantham, 140 Fla. 120, 191 So. 197; Shea v. Carlton, 116 Fla. 507, 156 So. 495.

It is proper that the defense of res adjudicata be raised by motion where the facts supporting such motion appear from the bill of complaint. Keen v. Brown, 46 Fla. 487, 35 So. 401.

The order of the Chancellor dismissing the bill of complaint in this cause is presumed to be correct and no reversible error has been shown.

Affirmed.

ROBERTS, C.J., and TERRELL and SEBRING, JJ., concur.