Earl v. Earl

For the purpose of this opinion it will be assumed that the affidavit for service by publication in the divorce action of 1895 was insufficient, and that service by publication in that action was void. This presents the question whether or not the judgment of the circuit court of Davies county, Mo., wasres judicata, and therefore an estoppel upon the present plaintiff in this action. The preliminary question arises whether the courts of one state have jurisdiction to declare the judgment of another state void. While there is some conflict of authority on this question, the great weight of authority is that they do possess such power. In Litowich v.Litowich, 19 Kan. 451, 27 Am. Rep. 145, a decree of divorce had been obtained in Utah, and the validity of this judgment came to the Kansas courts on the question of alimony in that court. It was contended that the Utah divorce was void, and the court say:

"Where the judgment granting the divorce does not appear to be void upon its face, it may be shown to be void by evidencealiunde. And, indeed, any judgment from a sister state, void for want of jurisdiction, may be shown to be void in any proceeding, direct or collateral, and by evidence dehors the record, provided that the record itself does not show the invalidity of the judgment upon its face. Thompson v. Whitman, 18 Wall. 457 [21 L. Ed. 897]; Knowles v. Gaslight Co., 19 Wall. 59 [22 L. Ed. 70]."

This is followed in the case of Mastin v. Gray, 19 Kan. 458, 27 Am. Rep. 149, wherein the court say:

"A great majority of the courts hold that a judgment from another state may be impeached for want of jurisdiction collaterally as well as directly, and by extrinsic evidence as well as by the record."

In Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897, it is decided that neither the constitutional provision that full faith and credit be given in each state to the judicial proceedings of another state or the act of Congress passed in pursuance thereof prevents an inquiry into the jurisdiction of the court rendering the judgment by the courts of another state. In our opinion, these cases are supported by reason and the great weight of authority, and the Missouri court therefore had jurisdiction to pass upon the validity of the Oklahoma judgment.

The question is, therefore, whether the judgment of the Missouri court was res judicata in the case at bar. In that case two issues were distinctly raised by the answer: First, the general denial of the allegations of the petition by the wife; and, second, the validity of the Oklahoma judgment. It will be noted that in her reply the present plaintiff directly impeached the judgment on the ground that there was no jurisdiction over her person. The court in that case made a general finding on the issues in favor of the defendant. The question, therefore, is presented whether this was an adjudication of the Oklahoma judgment.

In Pratt v. Ratliff, 10 Okla. 168, 61 P. 523, it is held:

"A judgment is a bar if the cause of action be the same, though the form be different. The cause is the same when the same evidence will support both actions; or, rather, the judgment in the former action will be a bar provided the evidence necessary to sustain the judgment for the plaintiff in the present action would have authorized a judgment for him in the former. When a matter has once passed to final judgment without fraud or collusion, in a court of competent jurisdiction, it has become res judicata, and the same matter between the same parties cannot be reopened or subsequently considered."

In the case at bar the same evidence which has been introduced by the plaintiff in this action to show the want of jurisdiction in the district court of Oklahoma county in the action of 1895 would have been entirely relevant and competent in the action in Missouri to show no jurisdiction had ever been obtained over the person of the defendant.

In Woodworth v. Town of Hennessey, 32 Okla. 267,122 P. 224, it is held:

"A fact or a question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a court of competent jurisdiction, is conclusively settled by the judgment therein, so far as concerns the parties to that action, and persons in privity with them, and cannot be again litigated in any future action between such parties or privies, in the same court, or in any other court of concurrent jurisdiction upon the same or a different cause of action."

The question of the validity of the judgment of 1895 was directly put in issue in the Missouri case, and the court found the issues in favor of the defendant.

In Pioneer Tel. Tel. Co. v. State, 40 Okla. 417,138 P. 1033, it is held:

"A regular judgment, whilst it remains in force, is conclusive as to every matter that might have been given in evidence or pleaded to the action in which it was rendered, except matters growing out of separate and independent causes of action, which might have been pleaded in offset."

This is a governing authority in the case at bar. The validity of the judgment of 1895 was distinctly and fairly put in issue by the pleadings in the Missouri case.

In Indian Land Trust Co. v. Shoenfeldt, 135 Fed. 484, 68 Cow. C. A. 196, it is held by the Circuit Court of Appeals for the Eighth Circuit:

"Where a court of equity has no jurisdiction of a suit, the decree of dismissal must expressly adjudge that it is rendered upon that ground, or must expressly provide that it is made without prejudice. A general decree of dismissal, without more, renders all the issues presented in the case res adjudicata, and constitutes a bar to an action at law for the same cause."

In Holford v. James, 136 Fed. 553, 69 Cow. C. A. 263, it is held:

"It is sufficient to support a plea of res judicata, if the record of the court having cognizance of the prior case shows final disposition of it on the merits, and this though the issues did not appear in the entry of judgment."

The plaintiff in error contends that the Missouri judgment cannot be taken as an estoppel because there were two issues raised by the pleadings, and, as there is a judgment without specifically finding on the issue which is now claimed asres judicata, the burden is on the party pleading the estoppel to show by evidence that the decision of the court was on that issue.

Plaintiff in error cites a number of authorities to sustain this position, but, if they are applicable to the case at bar, we think the question is foreclosed in this state by the decision in Pioneer Tel., etc., Co. v. State, supra. Under the pleadings of the Missouri case there is no doubt that the question as to the validity of the Oklahoma judgment might have been given in evidence in that action, and, if it could have been, under the above-cited case, it is an estoppel.

We recommend that the judgment be affirmed, and the petition for rehearing be denied, and the former opinion filed herein be withdrawn, and this opinion substituted therefor.

By the Court: It is so ordered.