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leave him, or justifies her in so doing, the | ing was not made. True, the paper filed by 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 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.
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 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, 54 N. E. 587.
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 Both of the Illinois courts, in considering that it was not collusively made eliminates the objection that the trial court was withthe conception that the admission was made out power to make a finding concerning the regardless of its truth, and independently of absence of fault on the part of the wife bethe facts shown by the testimony which had cause of the consent manifested by the paper theretofore been taken in the cause. When filed by the husband, treated that paper not it is observed that, shortly following the fil- as a mere consent to a decree in relation ing of this paper, the statement of the wife to that subject, but as an admission concernwas filed, accepting the husband's admission ing the state of the proof in the record, as conceding that the proof established that which, whilst it rendered it unnecessary for the separation was not caused by her fault, the court to analyze the proof, did not deand stating that she had refused the solici- prive it of the power to make a judicial findtation of the husband to discontinue the ing of the fact. It is to be observed, also, cause and accept an allowance to be made that both courts held that on the issue as by him for her separate maintenance upon the sum to be allowed for separate mainteto the custody of the minor children and an agreement that so doing should not pre-nance, the inquiry into the conduct of the judice 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 find
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 review was a consent decree, we are of opinion that the cases relied
upon by the supreme court of California | was right in its decision, although the rea (Wadhams v. Gay, 73 Ill. 417; Farwell v. Great Western Teleg. Co. 161 Ill. 522, 44 N. E. 891) 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, 27 L. ed. 260, 1 Sup. Ct. Rep. 456, el seq.-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, 17 N. E. 696; O'Connell v. Chicago Terminal Transfer R. Co. 184 Ill. 308, 325, 56 N. E. 355. Thus, in Knobloch v. Mueller, the court said (123 Ill. 565, 17 N. E. 699):
"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. Allason v. Stark, 9 Ad. & El. 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 Land-Grant & R. Co. 95 U. S. 391, 24 L. ed. 481; Armstrong v. Cooper, 11 Ill. 540; Cronk v. Trumble, 66 Ill. 432; Haas v. Chicago Bldg. Soc. 80 Ill. 248; Atkinson v. Manks, 1 Cow. 693; Winchester v. Winchester, 121 Mass. 127; Allason v. Stark, 9 Ad. & El. 255; Alexander v. Ramsay, 5 Bell, App. 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 error, or by bill of review for error. Armstong 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
soning 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. Wahle v. Wahle, 71 Ill. 510, and Umlauf v. Umlauf, 117 Ill. 584, 57 Am. Rep. 880, 6 N. E. 455. But these cases do not sustain the proposition based on them. In the Wahle 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 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 wilful 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 state ment (p. 584, Am. Rep. p. 881, N. E. p. 456):
"No principle is better settled than that,
where a question proper for judicial de- | conclusive upon the husband in the courts termination is directly put in issue, and of California of the issue of wilful deserfinally 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 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 wilful 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 as serted, the proposition of fact upon which the argument rests amounts simply to deny ing 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, 16 N. E. 891.
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,
tion? That the issue of wilful 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 was stated by the husband in his answer to the bill to have been an abandonment and desertion of him. The wilful 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, 16 L. ed. 226. 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, thę 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 wilful desertion of the wife by the husband plainly appears from the following excerpt from the opinion-italics mine (p. 588, L. ed. p. 228): "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 asked for the divorce on account of his wife having wilfully abandoned him."
(198 U. S. 299)
So, also, the courts of Massachusetts have | OLD DOMINION STEAMSHIP COMPANY,
held the fact to be that a separation legalized by judicial decree was a conclusive determination that the same separation was not wilful desertion. Thus, in Miller v. Miller, 150 Mass. 111, 22 N. E. 765, explicitly approved in Watts v. Watts, 160 Mass. 464, 23 L. R. A. 187, 39 Am. St. Rep. 509, 36 N. E. 479, 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:
Plff. in Err.,
COMMONWEALTH OF VIRGINIA.
State taxation of vessels engaged in interstate commerce-effect of enrollment or registry outside the state.
Vessels which, though engaged in interstate commerce, are employed in such commerce wholly within the limits of a state, are subject to taxation in that state, although they may have been registered or enrolled under U. S. Rev. Stat. §§ 4141, 4311, U. S. Comp. Stat. 1901, pp. 2808 and 2959, at a port outside the limits of the state.
"The fact determined by it is inconsist ent with the necessary allegation in the libel that the libelee previously had utterly deserted the libellant, and was then continu- Argued April 25, 26, 1905. Decided May 15, ing such desertion. Utter desertion, which
is recognized by the statute as a cause for divorce, is a marital wrong. Because the de
serter is a wrongdoer, the law gives the de-IN ERROR to the Supreme Court of Ap
serted 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 Met. 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 wilful desertion by the wife of the husband. From these conclusions it necessarily follows that the issue presented in 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.
peals of the State of Virginia to review a judgment affirming, on appeal, a finding of the state corporation commission declaring taxable, under the laws of the state, certain vessels belonging to a foreign corporation, registered or enrolled at a port outside the limits of the state, and employed in interstate commerce wholly within the limits of the state. Affirmed.
See same case below, 102 Va. 576, 102 Am. St. Rep. 855, 46 N. E. 783.
Statement by Mr. Justice Brewer: On March 17, 1904, the supreme court of appeals of the state of Virginia, in a matter appealed from a finding of the state corporation commission, entered the following findings and order:
"That the Old Dominion Steamship Company was a nonresident corporation, having been incorporated by the senate and house of representatives of the state of Delaware; that it was then and had been for many years theretofore engaged in the transportation of passengers and freight on the Atlantic ocean and communicating navigable waters, between the city of New York, in the state of New York, and Norfolk, and certain other ports within the state of Virginia. ginia. That said steamship company, in the prosecution of its said transportation business, owned and operated the vessel property above named; that these vessels, with the exception of the tug Germania,. whose movements and use will be hereinafter stated, visited various ports or points within the state of Virginia, for the purpose of receiving freight and passengers, for which they issued bills of lading and tickets to points outside the state of Virginia; that, owing to the shallow waters where these vessels plied, it was impossible
in most instances for the larger ocean- | in the matter of stateroom accommodations going steamers of the company to be for carrying passengers between Richmond used; that in consequence the vessels and Norfolk, and the said two steamers have above enumerated were used to receive the since that time been advertising for the freight and passengers as aforesaid, giving carriage of passengers and freight on their the shipper of freight a bill of lading for route between Richmond and Norfolk, and the same, destined to New York and other have been regularly carrying freight and points outside of Virginia, and the passen- passengers between the said two points in ger a ticket to his destination, and thus Virginia as well as taking on freight and transported such freight and passengers to passengers for further transportation on deeper water at Norfolk and Old Point Com- their ocean steamers at Norfolk. The Old fort, where, upon such bills of lading and Dominion Steamship Company applied, untickets, the passengers and freight were der the revenue laws of the state of Virginia, transferred to one of the larger ocean-going for a license to sell liquor at retail on each vessels of the steamship company, and so of these steamers, and on July 1st, 1902, the ultimate destination, namely, New York, there was granted, through the commissionand elsewhere outside of Virginia, was er of the revenue of the city of Richmond, a reached; that any other business transacted license to the Old Dominion Steamship Comby the above-named vessels was incidental in pany for the sale of liquor at retail on each character and comparatively insignificant in of these steamers, said licenses to expire on amount; that the said vessels were built April 30th, 1903. On or about the same and designed for interstate traffic especially, time the said steamship company complied and were adjuncts to or branches of the with the revenue laws of the United States, main line of the Old Dominion Steamship and paid the necessary revenue tax through Company between New York and Norfolk; the custom house at the city of Richmond that each and all of the said vessels were for the purpose of selling liquor at retail on regularly enrolled, under the United States each of these steamers. In the spring of 1903 laws, outside of the state of Virginia, with the said steamship company, in order to obthe name and port of such enrollment paint- tain licenses to sell liquor at retail on each ed on the stern of each of them; that the of these steamers, applied for the same in the said vessels, though regularly enrolled and city of Richmond, and complied with the licensed for coastwise trade, were then used requirements of § 143 of the new revenue on old established routes upon navigable law, approved April 16th, 1903, and so obwaters within Virginia, as follows, to wit: tained licenses for the year 1903-1904 to sell liquor at retail on each of these steamers on their route between the cities of Richmond and Norfolk, and likewise, on or about the same time, complied with the revenue laws of the United States in the matter of selling liquor at retail on each of the said steamers on said route.
"First. The steamer Hampton Roads, between Fort Monroe and Hampton and Norfolk.
"Second. The steamer Mobjack, between points in Mathews and Gloucester counties and Norfolk.
"Third. The steamers Luray and Accomac, between Smithfield and Norfolk.
"Fourth. The steamer Virginia Dare, between Suffolk and Norfolk.
"Sixth. The steam tug Germania, which was used in the harbor of Norfolk and Hampton Roads for the purpose of docking the large ocean-going steamers of the Old Dominion Steamship Company, and the transferring from different points in those waters freight from connecting lines destined to points outside of Virginia.
"Fifth. The steamers Berkeley and Brandon, between Richmond and Norfolk; and "The steamers Berkeley and Brandon ply between Richmond and Norfolk. These two steamers were completed in the year 1901, or early in 1902, one of them having been "And the court, having maturely considconstructed at the William R. Trigg ship- ered said transcript of the record of the yard in the city of Richmond, and the other finding aforesaid and the arguments of outside of the state of Virginia. Early in counsel, is of opinion that the legal situs of the year 1902 they were placed upon the the vessels and barges assessed for taxation line between Norfolk and Richmond, one by the finding of the state corporation comsteamer leaving Richmond each evening and mission is, for that purpose, within the arriving in Norfolk each morning, thus giv- jurisdiction of the state of Virginia, and ing a night trip every night each way be- that said property is amenable to the tax tween Richmond and Norfolk. At the time imposed thereon,-notwithstanding the fact these steamers were placed upon this route, that said vessels and barges are owned by and since that time, the Old Dominion a nonresident corporation, that they may Steamship Company has, by public adver- have been enrolled under the act of Contisement, called attention to the fact that gress at some port outside the state of Virthese two steamers were especially fitted 'ginia, and that they are engaged, in part,