74 P. 284 | Cal. | 1903
This action was prosecuted by plaintiff to obtain a divorce from his wife for her desertion of him. The findings and decree of the court were in favor of plaintiff, and from the judgment of divorce which followed and from the order refusing her motion for a new trial defendant appeals.
The parties to the action at the time of the alleged desertion resided at Chicago, in the state of Illinois. There, in February, 1890, the defendant, for reasons which she believed necessitated this action upon her part, left her husband's home, and ever since has continued to live separate and apart from him. The husband thereafter removed to and became a resident of the county of San Diego, in the state of California, and there commenced this action. The court determined in favor of the bona fides of his residence; and as this was the determination of a question of fact, upon conflicting evidence, that determination here cannot be disturbed. Thus in the Estate of Newman,
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 *693
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 thistrial 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,
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.