Harding v. Harding

on the 6th of November he intended to take up his home there at, that time, and actually did so. Such being the case, it was not error to refuse to charge the jury that this was not the fact. It is not for us to decide that the jury brought in a wrong verdict under a correct charge if the record shows, as it does, that there was some evidence to support the finding which was made.” In Hope v. Flintge, 140 Mo. 390 , the question there also being one of residence, the court said: “It was a question of fact in which the intention of the parties largely entered, and the circuit court found that they were residents within the meaning of the law, and that finding we will not disturb.”

The same rule must also be applied to the question of-the sufficiency of the evidence upon the charge of desertion. It was in sharp conflict, and upon either side was the corroborating evidence of the children, for the house unfortunately was divided against itself. The determination of the trial court, under these circumstances, that defendant had been guilty of desertion cannot here be disturbed.

It is earnestly insisted, however, that the question of defendant’s alleged desertion was not open to inquiry in this action, but that its consideration had been foreclosed by a judgment of the Illinois courts, which judgment operated as an estoppel. The facts in this regard are the following: Shortly after Mrs. Harding left her husband's home. she instituted in the courts of Illinois an action for separate maintenance against her husband, which action the laws of Illinois permit when a wife is living separate and apart from her husband “without any fault upon her part.” The action was contested by the husband, and reference was made to a master in chancery for the taking of evidence, and evidence was taken. Finally, and before the determination, the husband filed his stipulation in the action, by the terms of which he conceded his obligation to support his wife; he alleged his confidence in his ability to make good his defense; asserted that it seemed to be in the interest of peace, and to end litigation, to consent to a decree for such sum as the court might find to be equitable, and expressed his willingness that a decree for separate maintenance should be entered in favor of the plaintiff without a finding or trial of the issue as to

whether she was living apart without fault on her part. The stipulation then proceeded: “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.” Following this stipulation the court made its order of reference to the master “to take evidence and report the same with his conclusions upon the issue in question, as to the amount or amounts, if any, to be allowed complainant and to be decreed to be paid by defendant to complainant for alimony, and upon the other issues herein than the question as to whether complainant at the time of the commencement of this action 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, as by his written stipulation filed herein on January 3, 1893, and for the purpose of this trial only, that the complainant was at the time of the commencement of this suit, and since that time has been, and is, living separate and apart from her said husband without her fault.” After litigation attending the fixing of the amount, the circuit court of Cook County filed with its decree its “Certificate of Evidence,” wherein the court declares: “In settling the terms of said decree, the attorneys for the complainant requested the court to find in such decree that the allegations in the said bill of complainant, as amended herein are true, but that the defendant objected to such finding on the ground of the paper filed herein January 3, 1893, and presented to the court by the defendant, and the contents thereof, and on the further ground that such finding was not warranted by the proof; and the court stated that it, the court, had not considered or passed on that question, for it, the court, regarded it as unnecessary in view of the said paper of defendant, filed herein January 3, 1893, [the stipulation above referred to] and thereupon such finding was not inserted in such decree.” This statement was provided for in the decree rendered, and having been made a part of the record, such certificate itself becomes part thereof. (Rawson v. Rawson, 37 Ill. App. 495 ;

Ensminger v. Powers, 108 U. S. 292 .) It was under such circumstances that the decree was given, and it is this judgment which defendant insists raises an estoppel against plaintiff and forbids an inquiry- by the courts of this state into the matter of defendant’s desertion. But, waiving the question as to whether the issue, under the Illinois statute, that a wife is living apart from her husband without any. fault of her own is identical with the issue presented under the laws of this state, in an action for divorce upon the ground of desertion, still we think the contention of respondent cannot be upheld. It is fundamental that no more force is to. be allowed to the judgment of a sister state, when raised as a bar by way of estoppel in an action between the parties in another state, than would be accorded to that judgment by the courts of the state which rendered it, or, as Mr. Freeman puts it: “ The first question to be determined in regard to a judgment of another state, after jurisdictional inquiries have been satisfactorily answered, is, What .is its effect in the state whence it was taken % The effect which it has there is precisely the effect which must be accorded to it in every other state. It must not be given any greater effect than it has in the state where it was rendered.” (2 Freeman on Judgments, sec. 575.) By the rule of decision in the courts of Illinois, adopting that of the English courts, a consent judgment operates to estop the parties no further than is necessary to secure the enforcement of the judgment or decree in the particular matter in which the consent judgment was given, and it is not a ■ bar to an inquiry into the same question in any other action. Thus in Wadhams v. Gay, 73 Ill. 417 , the syllabus correctly states the decision of the court in the following language: “Res judicata is the decision of the court upon a contested matter between parties. When a judgment or decree is rendered by consent, or is the result of a compromise, it cannot be admitted as res judicata.” And in the opinion the court quotes with the approval the following from the House of Lords in Jenkins v. Robinson, 1 H. L. Sc. 117: “The interlocutor in the former action having been the result of a compromise between the parties, it cannot be considered as a judicium; nor can it be admitted as res judicata. ... In my opinion, res judicata signifies that the court has, after argument and

consideration, come to a decision on a contested matter. Here the court exercised no judicial function upon the subject. It merely exercised an administrative function by recording the interlocutor which had been agreed to by the parties.” It thus appears from this case that the courts of Illinois will not allow the application of the doctrine of estoppel to a consent judgment which merely registers the agreement between the parties, and the same views are expressed by the highest court of Illinois, quoting a:t large from the ease last above cited, in the late case of Farwell v. Great Western Tel. Co., 161 Ill. 522 .

We are not- here considering the doctrine of estoppel as it may be applied to our own judgments by the courts of this state. Our consideration is limited to a determination of the rule as it obtains in the state of Illinois, for, as has been said, no higher efficacy can be given to the Illinois judgment by the courts of this state than would be given to it by the courts of that state, and it appears, for the reasons stated, that that judgment having been entered by consent, would not in the courts of Illinois raise the bar of estoppel against the determination of the issue of desertion, which was tried and decided in this state adversely to the appellant.

For the foregoing reasons the judgment and order appealed from are affirmed.

McFarland, J., and Lorigan, J., concurred.

Hearing in Bank denied.