22 Haw. 429 | Haw. | 1915
OPINION OP THE COURT BY
On June 27, 1914, tbe libellant, Manuel Macedo, Jr., instituted against Ms wife a suit for divorce from tbe bond of matrimony in tbe circuit court of tbe first circuit, at ebambers, charging her with having wilfully and utterly deserted him
At the hearing the libellant introduced in evidence the record in a previous suit between the parties wherein the wife, as libellant, had sought a divorce from her husband. The record included the libel, filed July 14, 1913, which averred that the parties were married at Plonolulu, on the 26th day of December, 1896, and had ever since lived together at Honolulu as husband and wife, that she had been compelled, because of abusive language, threats and ill-treatment by her husband, to leave him on or about the 25th day of April, 1913, and that for a continuous period of more than sixty days he had neglected and refused to provide her with suitable maintenance, though of sufficient ability to provide same; the answer of the libellee in which he admitted the marriage and denied each and every other allegation set forth in the libel; and the decree, dated the 19th day of May, 1914, made by the second judge of the circuit court of the first circuit, which, after reciting that the parties were present, the libel had been heard, evidence adduced, arguments of counsel made, and the court fully advised in the premises, ordered and decreed “that the prayer of the libellant is denied and the libel dismissed.”
In the case at bar the trial judge intimated that the testimony showed extreme cruelty on the part of the husband toward
The trial judge took tbe view, citing Bartlett v. Bartlett, 113 Mass. 312; Wagoner v. Wagoner, 25 Atl. (Md.) 338; and 1 Van Fleet on Former Adjudication, pp. 204, 307, tbat tbe maxim that no person shall be twice vexed for one and tbe same cause, applied to divorce cases, requires tbat tbe libellant shall set up in tbe one case all, tbe grounds for divorce be or she has or intends to rely on, and tbat “it is contrary to the policy of our law tbat a person having, or conceiving himself to have, several causes of action for divorce, may select one or more of such causes from a greater number, and, having unsuccessfully litigated such one or more causes, still be at liberty to litigate the causes, or any of tbe causes, which were omitted from tbe first suit.” In tbe Bartlett case a libel brought against tbe wife alleging adultery was beld barred by tbe decree in a former suit wherein tbe libel of tbe husband charging desertion bad been dismissed, tbe adultery being known to bim at tbe time of the first suit. The court said, “Good faith and justice required the husband, if be intended at any future time to rely
The burden of proving a former adjudication is upon the party who sets it up. Lau Lam v. Whitcomb, 21. Haw. 252, 255. Counsel for the libellee contends that the burden was not sustained. The respondent’s answer in the former suit put in issue every fact averred in the libel except that of the marriage, and the decree is silent as to the ground upon which the judge based his conclusion. Failure of proof as to either the jurisdictional facts, or that the husband had failed to provide the wife with suitable maintenance, or that she was justified in leaving him, would have led to a dismissal of the libel. The record was not supplemented with other evidence. In Russell v. Place, 94 U. S. 606, 608, the supreme court said, “It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record, — as, for example, if it appears that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered, —the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined.” To the same effect, see DeSollar v. Hanscome, 158 U. S. 216, 221; McCarty v. Lehigh Valley R. Co., 160 U. S. 110, 120; Prall v. Prall, supra. In Lea v. Lea, 99 Mass. 493, 496, it was said that a decree dismissing a libel for a divorce which might have been entered upon the ground of either
We hold, therefore, that though the decree in the former suit operates as a bar to the maintenance of the wife’s cross-libel on the alleged ground of failure to provide on the part of the husband, it should not have been held, in the absence of proof showing that the fact that the wife was not justified in separating from her husband was determined by the former decree, to estop her now from showing extreme cruelty under her cross-libel or that she was justified in leaving him as a defense to the husband’s accusation of desertion.
The decree appealed from is reversed and the cause remanded to the circuit judge.