Pursuant to the statutes of Illinois, a wife living apart from
her husband, both being citizens of Illinois, sued for separate
maintenance alleging that she was so living on account of the
husband's cruelty and adultery and without any fault on her part.
The suit was contested, and, after much evidence had been taken,
the husband filed a paper admitting that the evidence sustained the
wife's contention, and consenting to a decree providing
Page 198 U. S. 318
for separation and support on certain terms, and the wife filed
a paper accepting the terms offered by the husband if the decree
found that her living apart from her husband was without fault on
her part. Such a decree was entered. Subsequently the husband
removed to California and commenced a suit for divorce on the
ground of desertion. The wife contested and pleaded the Illinois
judgment as an estoppel, but the California court declined to
recognize it on the ground that the issues were not the same, and
also because it was entered on consent. The wife then defended on
the merits, and judgment was entered in favor of the husband.
Reversed on writ of error and
held that:
Under the circumstances, the wife did not waive her right to
assert the estoppel of the judgment by defending on the merits.
The issues involved in the Illinois case and the California case
were practically the same, and, under the full faith and credit
clause of the Constitution, the California court should have held
that the Illinois judgment was an estoppel against the assertion of
the husband that the wife's living apart from him was through any
fault on her part or amounted to desertion.
As under the Illinois statutes the judgment entered in favor of
the wife was necessarily based on a judicial finding that her
living apart was not through her fault, the papers filed were to be
regarded as consents that the testimony be construed as sustaining
the wife's contention, and not as mere consents for entry of
judgment.
As a judgment in Illinois entered on consent has the same force
as a judgment entered
in invitum, and is entitled to
similar faith and credit in the courts of another state.
The facts are stated in the opinion.
Page 198 U. S. 324
MR. JUSTICE WHITE delivered the opinion of the Court.
The law of Illinois (Laws of Illinois, 1887, p. 115) provided as
follows:
"That married women who, without their fault, now live or
hereafter may live separate and apart from their husbands may have
their remedy in equity in their own names, respectively, against
their said husbands for a reasonable support and maintenance while
they so live or have so lived separately and apart, and in
determining the amount to be allowed the court shall have reference
to the condition of the parties in life, and the circumstances of
the respective cases, and the court may grant allowance to enable
the wife to prosecute her suit, as in cases of divorce. "
Page 198 U. S. 325
On February 3, 1890, Adelaide M. Harding filed her bill in the
Circuit Court of the County of Cook against her husband, George F.
Harding.
It was alleged that the parties were residents of the City of
Chicago. In substance, in the bill and an amendment, it was charged
that, without her fault, and in consequence of the cruel treatment
of her husband, and of his adultery, the plaintiff had been obliged
to live apart from him. It was prayed that the court decree that
she was so living apart without her fault, that it would award her
the custody of certain of the children of the marriage, and that
the defendant be decreed to provide for the separate maintenance of
the complainant and the support of the children. The answer and an
amendment thereto admitted the marriage, the birth of the children,
and the residence in Chicago, denied the charges of cruelty and
other misconduct, and averred that the complainant was living apart
solely through her own fault, and that she had refused to return
after repeated requests, which were reiterated in the answer.
We shall hereafter, as far as possible, refer to the parties to
that litigation, who are the parties to this suit, as the wife and
the husband, respectively.
The court, by an interlocutory order, fixed a sum to be paid by
the husband for the fees of the solicitors of the wife, for the
maintenance of the wife during the pendency of the cause, and for
the support of the minor children.
The case was put at issue and much testimony was taken. With
this testimony extant, and nearly three years after the
commencement of the suit, on January 3, 1893, a document was filed
in the papers of the cause signed by the husband and by his
solicitor. In substance, the paper recited that, at the time of the
commencement of the suit, the wife had in her hands a considerable
amount of property and money belonging to the husband which was
applicable to her maintenance, and that, when this sum was
expended, the husband would feel it his duty to furnish further
money to support the wife,
Page 198 U. S. 326
whatever might be the result of the cause. That the husband was
confident of making a successful defense to the suit, but that it
seemed to him it was best for the sake of peace and to avoid
scandal to put an end to the litigation by consenting to a decree
in favor of the wife for a separate maintenance, the paper further
stating:
"Hence, I give my consent that a decree for separate maintenance
shall be entered in favor of the plaintiff without finding or trial
of the issue in this case. That this consent is not collusive is
sufficiently shown by the length and character of the litigation. I
further offer and stand ready to make such other or further or
different stipulation by an amendment of the pleadings or
otherwise, as may, in the opinion of your honor, be required to
make it unnecessary for the court to hear and decide upon the
issues in evidence in this case after a long and expensive hearing.
To this end, I declare my willingness to stipulate, and I do hereby
stipulate, that the plaintiff at the time of the commencement of
this suit, was living and ever since has been living separate and
apart from her husband without her fault, and may take a decree
with my consent for such sum as may be reasonable and just for her
separate maintenance. This is the same offer which I have made by
way of an attempt at compromise ever since the commencement of this
suit, in which effort at compromise I have not hesitated to offer
double the amount that, in my opinion, should be allowed for her
separate maintenance by the court."
The wife, on January 17, 1893, filed a counterstatement. She in
substance declared that she had no previous knowledge of the
intention of her husband to file the paper which he had submitted
to the court; that she had always been confident of the justice of
her cause and of maintaining the same, and that the testimony then
taken in the cause gave her great certainty of the establishment of
her rights; that she had always been willing to adjust the amount
to be allowed for her separate maintenance, provided there was
a
"finding and
Page 198 U. S. 327
decree of this Court thereon that she was at the time of the
filing of the bill herein, living separate and apart from the
defendant without fault on her part, and has been so living ever
since."
The statement then referred to certain negotiations which had
been pending between the husband and wife on the subject of the
amount of separate maintenance to be allowed, enumerated previous
offers made by the husband on this subject, which she had been
unwilling to accept, because the husband had insisted on either the
dismissal of her suit, a decree in his favor, or an agreement which
would not preclude him from suing for a divorce for desertion
arising from her having separated from him. It was then stated in
substance that, as interpreted by the wife, the paper filed by the
husband waived the conditions which he had previously insisted
upon, and assented to a decree finding that the separation was
without her fault, and she was willing, for the sake of preventing
further scandal, to accept the amount previously offered by the
husband, although deeming the sum inadequate to her condition of
life,
"upon the decree finding that complainant was living separate
and apart from defendant without fault on her part, being now
promptly entered such as the said voluntary stipulation of the
defendant justifies."
No action appears to have been taken by the court upon these two
papers except insofar as may be inferred from the statements which
follow.
In May, 1893, the court entered an order referring the cause to
a master to take further evidence as to the amount of alimony,
etc., to be awarded,
"and upon other issues herein than the question as to whether
complainant, at the time of the commencement of this suit, was, and
since that time has been and is, living separate and apart from her
husband, the defendant, without her fault, said defendant having
admitted upon the record herein, and now admitting in open court,
that the complainant was living separate and apart from him without
fault on her part."
Nearly three years after the matter had been thus referred
Page 198 U. S. 328
to the master, the order of reference was amended
nunc pro
tunc, as of the date of the previous order, by substituting
for the words "and now admitting in open court" the words "as by
his written stipulation filed herein on January 3, 1893, and for
the purpose of this trial only." A few months thereafter, the
master filed his report. Therein he stated his conclusions deduced
from the evidence taken prior to 1894 on the subject of the right
of the wife to her separate maintenance, and found as a matter of
fact that her right was established by the proof. He also found
that the wife was entitled to a stated sum for her separate
maintenance and an additional sum for the support of the children.
Exceptions were filed to the report, which were heard by the court,
and a final decree was rendered on July 26, 1897. It was recited,
among other things, in this decree that the court,
"doth find that the said complainant, at the time of the
commencement of this suit, was living, and ever since that time has
lived and is now living separate and apart from her husband, the
said defendant, without her fault, and that the equities of this
cause are with the complainant."
The decree awarded to the wife sums for her separate maintenance
and for the support of the children up to the time of their
becoming of age and a further sum for the fees of the solicitors of
the wife and other expenses of the litigation. The decree made no
reference to the admission contained in the paper filed by the
husband, nor was any statement made which limited the effect of the
decree as a final adjudication of the rights of the parties. An
exception on behalf of the husband was taken to each and every
finding of the decree, and sixty days were allowed to prepare a
certificate of evidence.
It would seem from the certificate of evidence, which was made
several months afterwards, that, on the settlement of the decree, a
controversy arose as to its terms -- the wife requesting the court
to state in the decree that all the charges made in the complaint
and the amended complaint as to cruelty, adultery, etc. -- had been
established by the proof, the
Page 198 U. S. 329
husband insisting, to the contrary, that the charges had not
been proven, and further asserting that it was not necessary to so
find, because of his admission of record. The court said that it
did not pass upon the question as to whether all the charges made
in the complaint were true, because it regarded it as unnecessary
"in view of the said paper of the defendant, filed herein January
3, 1893."
The husband prosecuted an appeal to the appellate court of
Illinois for the first district. But before this appeal was
perfected, and on August 31, 1897, he commenced in the Superior
Court of San Diego, California, this suit against his wife for
divorce. The marriage in 1855 and the residence in Chicago were
alleged, but it was averred that, ever since May 15, 1895, the
plaintiff had been a resident of the State of California. The sole
ground alleged for granting the divorce was willful desertion by
the wife in the month of February, 1890. The answer of the wife
denied that the husband was a resident of California, and in a
separate paragraph there was specially pleaded the proceedings and
the decree of the Illinois court and the admission of the husband
on the record therein as to the separation being without the fault
of the wife, all of which, it was asserted, established by the
thing adjudged that her living apart was justified and did not
constitute desertion.
In the meanwhile, before the trial of the cause, the appeal
prosecuted in the Illinois case by the husband was decided against
him in the appellate court, and he took an appeal to the Supreme
Court of Illinois, in which court the judgment was affirmed, with a
modification as to the amount of the allowance for alimony, and the
trial court changed the amount of its decree accordingly. The wife
then, by an amended answer, again set up the decree in Illinois, as
amended, as
res judicata.
On the trial, the wife introduced in evidence a certified copy
of the record of the Illinois suit. The husband introduced, over
the wife's objection and exception, a portion of the certificate of
evidence, which had been prepared for the purpose
Page 198 U. S. 330
of the appeal from the final decree in Illinois as originally
entered. The court made findings of fact to the effect that the
parties had been married in Illinois, that the husband was a
bona fide resident of California, and that, on the first
day of February, 1890, the wife had deserted her husband without
just cause. As a conclusion of law, it was deduced that the husband
was entitled to a divorce, but that the court was without power in
any way to limit or affect the decree for separate maintenance
rendered by the Illinois court. After the refusal of a new trial,
the wife appealed to the Supreme Court of California, and that
court affirmed the decree. 140 Cal. 690.
The question is, did the Supreme Court of California fail to
give due faith and credit to the decree for separate maintenance
rendered in favor of the wife in Illinois, which was pleaded by the
wife as
res judicata?
It is suggested in argument that that question cannot be passed
upon, as the wife, besides pleading and relying upon the Illinois
decree, defended on the merits, and by so doing waived the benefits
of the alleged estoppel arising from the Illinois decree. The want
of merit in the contention is at once demonstrated by the statement
that the Supreme Court of the State of California, in its opinion
in the cause, treated the question of estoppel by the Illinois
judgment as being open, and actually determined it.
The Supreme Court of California decided that the Illinois decree
was not conclusive in California as to the question of desertion,
for the following reasons: that decree, the court held, was a
consent decree, and being of that character, it was not a bar in
the State of Illinois. As it was held that the Illinois decree was
only entitled in California, under the due faith and credit clause,
to the effect which it would have in Illinois, it was hence decided
that the Illinois decree did not constitute an estoppel in the
courts of California. But we are of opinion that the premise upon
which the Supreme Court of California proceeded was a mistaken one,
and its conclusion
Page 198 U. S. 331
based thereon was erroneous, even if the correctness of the
premise be conceded for the sake of the argument.
The conclusion of the Supreme Court of California that the
Illinois decree was solely based on the consent of the parties, and
was consequently not the result of the action of the court, was
based on the following: 1. The paper filed by the husband on
January 3, 1893. 2. The recital in the amended order of reference
that the admission that the wife was without fault had been made
for the purpose of the trial only. 3. The statement of the trial
judge, made in the certificate of evidence, that, in view of the
admission on the record, he had not found it necessary to pass upon
all the charges made in the complaint.
But the conclusion drawn by the court from these matters assumed
that a decree for separate maintenance under the Illinois statute
could have been a mere matter of consent, and did not require the
ascertainment by the court of the facts made essential by the
statute to justify such a decree. That this was a mistaken
conception of the Illinois law has been clearly pointed out by the
supreme court of that state. In
Johnson v. Johnson, 125
Ill. 510, an appeal from a decree for separate maintenance, the
court said (p. 514):
"To maintain her bill, it was necessary for the complainant to
show not only that she had good cause for living separate and apart
from her husband, but also that such living apart was without fault
on her part. At common law, the husband was liable in an action at
law at the suit of any person furnishing to the wife necessaries
suitable to her condition in life, if the wife was residing apart
from him because of his willful and improper treatment of her, or
by his consent. 2 Kent, Com. 146;
Evans v. Fisher, 10 Ill.
571. No right of action existed in the wife; courts of equity
refusing to take cognizance at her suit, and enforce the legal
obligation of the husband to maintain her. 2 Story, Eq.Jur. ยง 1422.
The statute was passed to remedy this defect in the law, and gave
the right to the wife to maintain her bill for separate
maintenance, but
Page 198 U. S. 332
restricted the right to cases where the living separate and
apart from the husband was without her fault. The 'fault' here
meant and contemplated is a voluntary consenting to the separation,
or such failure of duty or misconduct on her part as 'materially
contributes to a disruption of the marital relation.' If she leave
the husband voluntarily, or by consent, or if her misconduct has
materially induced the course of action on the part of the husband
upon which she relies as justifying the separation, it is not
without her fault within the meaning of the law. No encouragement
can be given to the living apart of husband and wife. The law and
good of society alike forbid it. But a wife who is not herself in
fault is not bound to live and cohabit with her husband if his
conduct is such as to directly endanger her life, person, or
health, nor where the husband pursues a persistent, unjustifiable,
and wrongful course of conduct towards her which will necessarily
and inevitably render her life miserable and living as his wife
unendurable. Incompatibility of disposition, occasional ebullitions
of passion, trivial difficulties, or slight moral obliquities will
not justify separation. If the husband voluntarily does that which
compels the wife to leave him or justifies her in so doing, the
inference may be justly drawn that he intended to produce that
result, on the familiar principle that sane men usually mean to
produce those results which naturally and legitimately flow from
their actions. And, if he so intended, her leaving him would, in
the case put, be desertion on his part, and not by the wife."
In the second place, even if the rule of public policy
enunciated by the Supreme Court of Illinois be put out of view, the
assumption that the Illinois decree was a consent decree, merely
registering an agreement of the parties, disregards the form of
that decree, and cannot be indulged in without out failing to give
effect to the very face of the decree, which adjudged that the
separation of the wife from the husband was without her fault. This
was an express finding by the court, and one which the law required
to be judicially made.
Page 198 U. S. 333
In the third place, if it be conceded that the express terms of
the decree could be overcome by considering matters contained in
the record, but outside of the decree, the conclusion drawn by the
Supreme Court of California from the consideration of such matters
was, we think, a mistaken one. As we have said in stating the
facts, after the bringing of the suit for separate maintenance, in
which charges of the gravest character were made against the
husband as to cruelty, adultery, etc., much testimony had been
taken with regard to the charges. And it was in this state of the
case that the
ex parte stipulation of the husband was
filed in which he admitted that the wife was living separate and
apart from him without her fault. The declaration in the statement
that it was not collusively made eliminates the conception that the
admission was made regardless of its truth, and independently of
the facts shown by the testimony which had theretofore been taken
in the cause. When it is observed that, shortly following the
filing of this paper, the statement of the wife was filed,
accepting the husband's admission as conceding that the proof
established that the separation was not caused by her fault and
stating that she had refused the solicitation of the husband to
discontinue the cause and accept an allowance to be made by him for
her separate maintenance upon an agreement that so doing should not
prejudice him if he sued for a divorce on the ground of desertion,
it becomes impossible to hold that the decree was a mere
registering of an agreement between the parties, and not the
judicial action of the court. Certainly, when the papers filed by
the husband and wife are considered, there is no room for the
contention that a judicial finding was not made. True, the paper
filed by the husband expressed his desire to avoid such a finding,
but, instead of consenting to this proposition, the paper filed by
the wife insisted that she was entitled to the finding, that she
had always refused to waive it, and that she demanded it. The court
obviously considered that the wife was entitled to the right which
she thus claimed, since it made the very finding upon which the
wife insisted, and which the
Page 198 U. S. 334
paper filed by the husband sought to avoid, and the conduct of
the husband, in excepting to the finding as made by the court
demonstrates that he regarded it as a judicial determination of the
issue of absence of fault on the part of the wife. And the modified
order of reference gives rise but to the inference that, in view of
the admission of the husband, it was not deemed necessary, for the
purpose of the trial, to take further testimony in respect to the
conceded fact, or for the master to report in detail concerning the
evidence as to the misconduct of the husband which led to the
separation. This also explains the statement of the judge, made in
the certificate of evidence, as to the controversy regarding the
terms of the decree, and his refusal to find that all the charges
made in the bill had been proven. This view of the matters relied
upon by the California court was one expressly adopted by both the
appellate court and by the Supreme Court of Illinois in deciding
the appeal taken by the husband. On that appeal, as we have said,
he complained of the action of the court, including the finding
that the wife was living separate without fault on her part. 79
Ill.App. 590, 180 Ill. 481.
Both of the Illinois courts, in considering the objection that
the trial court was without power to make a finding concerning the
absence of fault on the part of the wife because of the consent
manifested by the paper filed by the husband, treated that paper
not as a mere consent to a decree in relation to that subject, but
as an admission concerning the state of the proof in the record,
which, whilst it rendered it unnecessary for the court to analyze
the proof, did not deprive it of the power to make a judicial
finding of the fact. It is to be observed also that both courts
held that, on the issue as to the custody of the minor children and
the sum to be allowed for separate maintenance, the inquiry into
the conduct of the husband was relevant, and required an analysis
of the testimony -- an analysis which embraced necessarily those
elements of proof which entered into the question of the causes of
the separation.
But if it be considered that, in any aspect, the decree
under
Page 198 U. S. 335
review was a consent decree, we are of opinion that the cases
relied upon by the Supreme Court of California,
Wadhams v.
Gay, 73 Ill. 417;
Farwell v. Great Western Tel. Co.,
161 Ill. 522, are not authoritative upon the proposition that such
decree would not, in the courts of Illinois, have the effect of
res judicata. The first of the cases -- considered by this
Court in
Gay v. Parpart, 106 U. S. 689
-- dealt merely with the right of a court of equity to refuse to
lend its aid to enforce an incomplete and ineffective decree in
partition proceedings, because to do so would be inequitable. In
the second of the cases, it was but decided that a fraudulent
decree might be set aside in a court of equity.
The general rule in Illinois undoubtedly is that a consent
decree has the same force and effect as a decree
in
invitum. Knobloch v. Mueller, 123 Ill. 554;
O'Connell v. Chicago Terminal R. Co., 184 Ill. 308, 325.
Thus, in Knobloch v. Mueller, the court said (123 Ill. 565):
"Decrees of courts of chancery, in respect of matters within
their jurisdiction, are as binding and conclusive upon the parties
and their privies as are judgments at law, and a decree by consent
in an amicable suit has been held to have an additional claim to be
considered final.
Alleson v. Stark, 9 Adol. & E. 255.
Decree so entered by consent cannot be reversed, set aside, or
impeached by bill of review or bill in the nature of a bill of
review, except for fraud, unless it be shown that the consent was
not in fact given, or something was inserted, as by consent, that
was not consented to. 2 Dan.Ch.Pr. 1576;
Webb v. Webb, 3
Swanst. 658;
Thompson v. Maxwell, 95 U. S.
391;
Armstrong v. Cooper, 11 Ill. 540;
Cronk v. Trumble, 66 Ill. 432;
Haas v. Chicago
Building Society, 80 Ill. 248;
Atkinson v. Manks, 1
Cow. 693;
Winchester v. Winchester, 121 Mass. 127;
Alleson v. Stark, 9 Adol. & E. 255;
Alexander v.
Ramsay, 5 Bell's App.Cas. 69.
See also note to
Duchess of Kingston's Case, 2 Smith Lead.Cas. 826
et
seq. It is the general doctrine that such a decree is not
reversible upon an appeal or writ of
Page 198 U. S. 336
error, or by bill of review for error.
Armstrong v.
Cooper, 11 Ill. 540."
And the assertion that the particular matters relied upon in
this cause are of such a character as to take this case out of the
rule just stated is conclusively shown to be without merit by the
decision of the appellate court and the Supreme Court of Illinois
affirming the decree of separation and the finding therein
made.
In the argument at bar there is a ground taken which was not
referred to in the opinion of the Supreme Court of California,
which, it is insisted, shows that that court was right in its
decision, although the reasoning of its opinion may be conceded to
have been erroneous. That ground is this: in Illinois, it is
contended, it has been settled that a decree in a suit for separate
maintenance is not
res judicata in a suit for divorce on
the ground of desertion, and
vice versa; therefore, the
Illinois decree should not have been given in California any
greater effect. Two cases are relied upon.
Wable v. Wable,
71 Ill. 510, and
Umlauf v. Umlauf, 117 Ill. 584. But these
cases do not sustain the proposition based on them. In the
Wable case, the husband had sued his wife for divorce on
the ground of abandonment, and she, in addition to answering, had
filed a cross-bill charging the husband with cruelty and adultery
and praying for separate maintenance. The principal cause was first
heard and decided adversely to the husband. Subsequently the
cross-bill was heard and a decree of dismissal was rendered. This
was alleged to be error on the ground that the verdict of the jury
on the issue of divorce, in favor of the wife, was a judicial
determination establishing the facts alleged in her cross-bill and
justifying her in living apart from her husband. But the Supreme
Court of Illinois held that, as the verdict of the jury in the
divorce suit was general, and did not indicate upon what particular
finding it was based, the court could not know upon what fact the
jury were induced to find as they did, and that, in consequence,
the bill did not necessarily establish that the separation of
the
Page 198 U. S. 337
parties was without fault on the part of the wife, since the
verdict might have proceeded upon either of the following grounds:
1, that the abandonment was for less than two years; 2, that it was
by mutual consent; or, 3, that it was induced by the acts of the
husband, whatever might have been the fault of the wife.
In
Umlauf v. Umlauf, the wife filed a bill for separate
maintenance but, failing to establish her right, the bill was
dismissed. Subsequently the husband filed a bill for divorce,
charging willful desertion by the wife from the date of the filing
of her bill against him for separate maintenance. Upon the hearing
of the divorce case the court admitted in evidence, against the
objection of the wife, the pleadings and the decree against her in
the suit for separate maintenance, and also excluded all evidence
on her part tending to disprove the charge of desertion. From a
judgment granting the divorce, the wife appealed. The Supreme Court
of Illinois prefaced its consideration of the question with the
following statement (p. 584):
"No principle is better settled than that, where a question
proper for judicial determination is directly put in issue and
finally determined in a legal proceeding by a court having
competent authority and jurisdiction to hear and determine the
same, such decision and determination of the question will be
deemed final and conclusive upon the parties and their privies in
all future litigation between them in which the same question
arises, so long as the judgment remains unreversed or is not
otherwise set aside."
But the court held that these elementary principles did not
apply, because the decree against the wife in the separate
maintenance suit was general, and might have been entered solely
upon the ground that the wife was not without fault, leaving
undecided the question whether the husband was in any way at fault,
and therefore there was not identity, and resulting
res
judicata.
The inappositeness of these cases to the present one becomes
Page 198 U. S. 338
obvious when it is recalled that in this case there was a decree
not against, but in favor of, the wife in the maintenance suit,
which decree necessarily conclusively settled that the separation
was for cause and was without fault on the part of the wife, and
therefore was not a willful desertion of the husband by the wife,
which is the precise issue in the divorce case now here.
In the brief of counsel, it is stated that, under the law of
California, if a wife is living apart from her husband under
circumstances which do not constitute desertion, yet such living
apart may become desertion if the husband in good faith invites the
wife to return, and she does not do so. In this connection,
reference is made to certain requests proffered by the husband for
the wife to return, which, it is urged, caused the separation to
become desertion under the California law. But, conceding, without
deciding, that the California law is as asserted, the proposition
of fact upon which the argument rests amounts simply to denying all
effect to the Illinois decree. This follows because all the
requests to return referred to were made in Illinois before the
entry of the final decree in the suit for separate maintenance,
were referred to in the answer in that case, and were adversely
concluded by the judgment which was rendered.
Johnson v.
Johnson, 125 Ill. 510.
Having thus disposed of all the contentions based upon the
assumed consent under the decree for separate maintenance or the
asserted limitations to such a decree, based upon the law of
Illinois, we are brought to consider the final question, which is
was the decree in favor of the wife for separate maintenance,
entered in the Illinois case, conclusive upon the husband in the
courts of California of the issue of willful desertion? That the
issue of willful desertion present in the divorce action was
identical with the issue of absence without fault presented in the
Illinois maintenance suit is manifest. The separation, asserted by
the wife in her bill for separate maintenance to have been without
her fault, was averred to have taken place on February 1, 1890, and
such separation
Page 198 U. S. 339
was stated by the husband in his answer to the bill to have been
an abandonment and desertion of him. The willful desertion charged
in the complaint in this action for divorce was averred to have
been committed "on or about the month of February, 1890, and to
have been continuous thereafter." And the identity between the two
is further demonstrated by the circumstance that the evidence taken
in the Illinois case bearing upon the cause for the separation was
used upon the trial in this case. The question in each suit,
therefore, was whether the one separation and living apart was by
reason of the fault of the wife. From the standpoint of a decree in
favor of the wife in the suit for separate maintenance, the issues
raised and determined were absolutely identical.
The controversy before us is, in some respects, like that which
was considered in
Barber v.
Barber, 21 How. 582. There, a bill was filed in a
federal court in Wisconsin to enforce judgment for alimony under a
decree of separation
a mensa et thoro rendered against a
husband in New York. It was shown by the evidence that, to avoid
the payment of the alimony, the husband had left the State of New
York, the matrimonial domicil, and taken up his residence in the
State of Wisconsin, where he obtained a decree of divorce on the
ground of desertion by the wife. Whilst this Court refrained from
expressing an opinion as to the legality of the Wisconsin decree of
divorce obtained under these circumstances, it enforced the New
York judgment for alimony, and held it to be binding. And that it
was considered that the judgment in New York legalizing the
separation precluded the possibility that the same separation could
constitute willful desertion of the wife by the husband plainly
appears from the following excerpt from the opinion -- italics mine
(p.
62 U. S.
588):
"It also appears from the record that the defendant had made his
application to the court in Wisconsin for a divorce
a
vinculo from Mrs. Barber without having disclosed to that
court any of the circumstances of the divorce case in New York, and
that,
contrary to the truth, verified by that record,
he
Page 198 U. S. 340
asked for the divorce on account of his wife having willfully
abandoned him."
So, also, the courts of Massachusetts have held the fact to be
that a separation legalized by judicial decree was a conclusive
determination that the same separation was not willful desertion.
Thus, in
Miller v. Miller, 150 Mass. 111, explicitly
approved in
Watts v. Watts, 160 Mass. 464, after holding
that an adjudication of a probate court that a wife is living apart
from her husband for justifiable cause was a bar to an action by
the husband for divorce on the ground of utter desertion, the
court, speaking of the decree of the probate court, said:
"The fact determined by it is inconsistent with the necessary
allegation in the libel that the libelee previously had utterly
deserted the libellant, and was then continuing such desertion.
Utter desertion, which is recognized by the statute as a cause for
divorce, is a marital wrong. Because the deserter is a wrongdoer,
the law gives the deserted party a right to a divorce. If a wife
leaves her husband for a justifiable cause, it is not utter
desertion within the meaning of the statute, and a wife who has
utterly deserted her husband, and is living apart from him in
continuance of such desertion, cannot be found to be so living for
justifiable cause.
Pidge v. Pidge, 3 Metc. 257, 261;
Fera v. Fera, 98 Mass. 155;
Lyster v. Lyster, 111
Mass. 327. The court should have ruled as requested by the libelee,
that the decree of the probate court was a bar to the maintenance
of this libel. Exceptions sustained."
We are of opinion that the final decree of July 26, 1897,
entered in the Circuit Court of Cook County, Illinois, in legal
effect established that the separation then existing, and which
began contemporaneously with the filing of the bill in that cause
in February, 1890, was lawful, and therefore conclusively operated
to prevent the same separation from constituting a willful
desertion by the wife of the husband. From these conclusions it
necessarily follows that the issue presented in
Page 198 U. S. 341
this action for divorce was identical with that decided in the
suit in Illinois for separate maintenance. This being the case, it
follows that the Supreme Court of California, in affirming the
judgment of divorce, failed to give to the decree of the Illinois
court the due faith and credit to which it was entitled, and
thereby violated the Constitution of the United States.
The judgment of the Supreme Court of California must therefore
be reversed, and the cause be remanded for further proceedings not
inconsistent with this opinion.
And it is so ordered.
MR. JUSTICE BROWN concurs in the result.