Harding v. Harding

The application for a rehearing on modification of opinion is denied. What was said in the opinion to the effect that the opinion of the United States supreme court "admittedly finally established the fact that the final decree of the Illinois court, pleaded and established by evidence in this action, constituted a full and complete defense to the sole cause of action of divorce asserted by the plaintiff herein," was said solely with reference to the conditions shown by the record on appeal. Upon that record, there was absolutely no defense to the estoppel in the slightest degree intimated, other than the alleged waiver urged in this court and disposed of by our opinion. If the findings of the trial court had been such as to justify that course, this court would have ordered judgment entered thereon in favor of defendant. There was, however, no finding broad enough to warrant this, and for that reason the cause was remanded for further proceedings not inconsistent with the opinions of the supreme court of the United States and this court. (Harding v.Harding, 198 U.S. 317, [25 Sup. Ct. 679]; 140 Cal. 690, [74 P. 284].) Upon the new trial which must necessarily follow plaintiff may undoubtedly urge any defense that he may have to the alleged estoppel. What was finally established by the opinion of the United States supreme court is that the allegations of the answer, and the evidence in the record in support thereof, showed an estoppel, constituting a full defense to the sole cause of action for divorce asserted by plaintiff.

We have determined that the benefit of the estoppel was not waived by the acts of the defendant on the trial in the superior court. So much is the law of the case. If on a new trial defendant can show that there was no judgment of the Illinois court, or any other fact inconsistent with those alleged in the answer in support thereof, or anything which legally avoids the estoppel, he will doubtless be allowed to do so, and there is nothing in the opinion already rendered which would preclude such showing.

Beatty, C.J., Shaw, J., Henshaw, J., and McFarland, J., concurred.