vorce against his wife, and section 2684 to cases | there made, and so defeat an adjudication therewhere the decree is granted to the wife against of entirely. her husband.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 675-678, 680; Dec. Dig. 240.]

3. DIVORCE 331-PROPERTY RIGHTS-OPERATION OF STATUTE.

Section 2684, Kirby's Digest of the Statutes of Arkansas, examined, and held to expressly determine just what interest a wife shall take in both real and personal property of her husband where she is granted a divorce, and that under that statute the Arkansas court could not have vested in plaintiff in this suit, who was defendant there, an interest for life, or other interest, in the land of which her husband was then seised located in Nebraska.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dec. Dig. 68.] 9. DIVORCE 331 - JURISDICTION - ALIMONY-PROPERTY IN ANOTHER STATE.

[Ed. Note.-For other cases, see Divorce, Cent. does not give full faith and credit to the judgDig. 88 841, 842; Dec. Dig.

331.]

4. DIVORCE 243 DECREE FOR ALIMONY CONSTRUCTION.

The pleadings and decree of the court of chancery in Arkansas examined, and held to have allowed plaintiff, as alimony, the sum of $2,611 and no more; and that such sum was the amount which she was entitled to receive out of the estate of defendant, located in the state of Arkansas.

[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 684-686; Dec. Dig. 243.] 5. JUDGMENT 720-RES JUDICATA.

ment of a sister state is without merit.
[Ed. Note.-For other cases, see Divorce, Cent.
Dig. §§ 841, 842; Dec. Dig. 331.]
11. FORMER OPINION-LAW OF THE CASE.
The opinion on the former hearing in this
case, 95 Neb. 757, 146 N. W. 1002, in so far
as it is applicable to the facts now appearing
in the record, is adhered to as the law of the

case.

Rose, Barnes, and Letton, JJ., dissenting.

Appeal from District Court, York County; Good, Judge.

Action by Lucie Bodie against Edward Bates, wherein Alberta Bates and others intervene. From judgment for plaintiff, defendant appeals. Affirmed.

"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 evi- Field, Ricketts & Ricketts, of Lincoln, W. dence, that the precise question was raised and L. Kirkpatrick, of York, and J. Wythe Walkdetermined in the former suit." Russell v. Place, 94 U. S. 606, 24 L. Ed. 214. er, of Fayetteville, Ark., for appellant. S.

[Ed. Note. For other cases, see Judgment, P. Davidson, of Tecumseh, and Gilbert Bros.. Cent. Dig. § 1251; Dec. Dig. 720.] of York, for appellee.

6. JUDGMENT 720-ESTOPPEL-REQUISITES. "The general principles governing the pleading and proof of former judgments as estoppels are now quite well settled by so long a line of authorities that it is useless to review them. Generally speaking, in order that a judgment in one action shall operate as an estoppel in a second action, it must be made to appear, not only that there was a substantial identity of issues, but that the issue as to which the estoppel is pleaded was in the former action actually determined." Slater v. Skirving, 51 Neb. 108, 70 N. W. 493, 66 Am. St. Rep. 444.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1251; Dec. Dig. 720.]

7. DIVORCE 331- ALIMONY - ESTOPPEL FOREIGN JUDGMENT EVIDENCE.

The evidence in the record, taken in connection with the pleadings and decree in the chancery court of Arkansas, and the then value of the real estate owned by defendant in the state of Nebraska, held to conclusively show that the court of chancery in Arkansas did not take the Nebraska land into account in fixing the amount of alimony allowed plaintiff.

FAWCETT, J. On the first trial of this cause in the district court for York county a general demurrer to the petition was sustained and plaintiff appealed to this court. We found that the petition stated a cause of action, and the judgment was reversed and the cause remanded for trial. 95 Neb. 757, 146 N. W. 1002. The trial in the district court after the case was remanded resulted in a decree in favor of plaintiff for $10,000 alimony. Defendant appeals.

[1] Our former opinion contains quite a full recital of the troubles of plaintiff and defendant, while husband and wife, and a sufficient statement of the issues involved in this suit. The parties were divorced March 2, 1911, in the court of chancery in Benton county, Ark., and plaintiff, by the decree in that case, was restored to her maiden name of Bodie, which accounts for the difference in the names of the parties in the present suit. As reference will frequently be made in this opinion to the parties as they appear in the A party cannot in one litigation insist that Arkansas suit and as they appear in the the court has no jurisdiction of specified prop- present suit, we will, for the purpose of erty and succeed in that contention, and after- avoiding any confusion as to the parties, rewards in another litigation with the same party fer to the plaintiff in this suit, who was the insist that the court did have jurisdiction of that particular property and should have adjudicated defendant in the Arkansas court, as "Bodie," in the former action contrary to his contention and to her former husband, defendant in

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 841, 842; Dec. Dig. 331.]

8. ESTOPPEL 68-JUDICIAL PROCEEDINGS

CHANGE OF CONTENTION.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

lutely, and one-third of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form." Kirby's Digest, § 2684.

this suit, as "Bates." In the Arkansas court, be restored to all property not disposed of at the Bates instituted the suit for divorce, alleg- commencement of the action which either party obtained from or through the other during the ing infidelity and other misconduct. Bodie marriage and in consideration or by reason denied the allegations of the petition and thereof; and the wife so granted a divorce prayed for a decree of divorce in her favor. against the husband shall be entitled to oneShe alleged the property of Bates in Arkan-third of the husband's personal property absosas, and also alleged that he was the owner of real estate in Nebraska of the value of $48,000, and prayed judgment and alimony. Bates and his counsel there contended on the trial of that suit that under the law of Arkansas the court in fixing the amount of alimony could not take into consideration the Nebraska land and allow the wife alimony on account of the value of such land. This contention was sound. The rule is settled in Arkansas that:

See, also, Thomas v. Thomas, 27 Okl. 784, 109 Pac. 825, 113 Pac. 1058, 35 L. R. A. (N. S.) 124, 133, Ann. Cas. 1912C, 713.

The record now shows that there is a prior section of the statute of Arkansas which pro

vides:

shall make such order touching the alimony of "When a decree shall be entered, the court the wife and care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable." Kirby's Digest, § 2681.

Can these two sections of the statute be construed together, or must they be distinguished and construed to apply to different conditions or situations? That they cannot be construed together is apparent upon their face, for they are directly contradictory. The statute first above quoted, which prescribes specifically what shall be allowed the wife as alimony when she is "so granted a divorce against the husband," is a later statute than section 2681, above quoted. Section 83, p. 936, 1 R. C. L., shows very clearly why section 2681 was enacted by the Arkansas Legislature, viz.:

"According to the rule of the common law, where a divorce was granted for the misconduct

In our former opinion we determined that of the wife, she was not entitled to alimony. (95 Neb. 762, 146 N. W. 1002):

"An examination of the Arkansas statute above set out shows that in that state no provision is made authorizing a money judgment as alimony. The law expressly declares just what interest the wife shall take in both the real and personal property of her husband, where she is granted a divorce. As to real estate, the provision is that she shall be entitled to 'one-third of all lands of which her husband is seised of an estate of inheritance, at any time during the marriage, for her life, unless the same shall have been released by her in legal form.' It will not, of course, be contended by any one that under that statute the Arkansas court could have vested in Mrs. Bates, for life, one-third of the lands of which her husband was then seised located in Nebraska. That provision unquestionably refers to lands situated within the jurisdiction of

the court."

[2, 3] There is some contention now that our former decision as to the effect of the Arkansas statute and as to the fact that the Arkansas court did not allow alimony on account of the York county land should not be considered as the law of the case because of the evidence which was introduced upon the trial from which this appeal is taken. The Arkansas statute referred to in the opinion, so far as it is pleaded and proven in the case, reads as follows:

"And where the divorce is granted to the wife, the court shall make an order that each party

This was productive of so much hardship, however, and so frequently left her a prey to starvation or a life of shame, especially where her own property had become vested in her husband by reason of the marriage, that statutes have been enacted in England and a number of the United States authorizing the courts to make such an allowance of alimony in favor of a guilty wife as the surrounding circumstances may justify."

Two of the states cited in this text are Arkansas and Oklahoma. In Ecker v. Ecker, 22 Okl. 873, 98 Pac. 918, 20 L. R. A. (N. S.) 421, we have a discussion of this identical section, viz. :

"The second assignment of error urged is to that part of the master's report recommending that defendant be awarded, and to that part of the judgment awarding to defendant one-half of plaintiff's property or one-half of its value. At common law a delinquent wife, on account of whose conduct the husband obtained a divorce, was not entitled to receive alimony; but in a number of the states, including the state of Arkansas, from which state the statutes in force in the Indian Territory were adopted, the common law has been modified by statute. The statute governing in this case reads: * (The section of the statute quoted in the opinion is a verbatim copy of 2681, Kirby's Digest, under consideration in this case.) Under the language of this statute, or similar language of the statutes of other states, the courts have held that the authority of the court to make orders touching the alimony of the wife is not limited to those cases in which she prevails, or that whether the guilty wife will be granted alimony tionary power of the court, to be controlled by and the amount thereof is within the discrethe circumstances of each case. (Citing cases.) It is, however, a discretion that a court should at all times exercise with a great care, and it

should not be exercised in favor of the guilty therefore that the allegation in the petition wife when there are no mitigating circumstanc- in this suit that section 2684 of Kirby's Dies. In the case at bar the wife is guilty of gross misconduct, but the husband has not been gest was the only statute in force in Arkanfree from fault. The finding of the master is sas, at the time of the trial of the suit there, that the conduct of each party toward the other which provided for the allowance of alimony has been such as to render their living together in a case where a divorce was granted to as husband and wife intolerable. There is nothing in the master's report as to whom he finds the more culpable, except that he recommends that the husband be granted a divorce."

the wife as against the husband, is a correct statement of the law. Section 2681 has no application whatever to such a case. In this manner and in no other can effect be given to each of the two statutes under consideration. It will be seen that the allowance of

The trial court ordered an equal division of the property or that defendant have judgment for one-half of the value of the same. This judgment was held erroneous, the hold-alimony to the wife, when a divorce is granting being based on section 2568, Mansf. Dig., enough of which is set out to show that that section is a duplicate of section 2684 in this case. In Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, 129 Am. St. Rep. 102, it is said:

ed for her fault, rests upon an entirely different basis than when the divorce is granted in her favor, and it is common in the United States, as above shown, to make that distinction by statute. There can be no doubt, therefore, that the general rule that a specific statute on a given subject will control as against a general statute that might include the same subject in the absence of a

"The first question presented is whether or not the chancery court had jurisdiction to decree an allowance of alimony to a guilty wife against whom a decree for divorce was granted." The court then quotes from 2 Nelson, Di-specific statute applies here, and that the vorce and Separation, § 907, where the question of the allowance of alimony to a wife, when the husband has obtained a divorce, is discussed along the same lines as the discussion in 1 R. C. L., above cited. The court then says:

"A statute of this state provides that." The court here quotes section 2681, Kirby's Digest, and then adds: "Similar statutes in other states have been construed to have enlarged the powers of courts in divorce cases so as to empower them to allow alimony in any case, even to a guilty wife."

statute quoted in our former opinion, being section 2684, controls the courts of Arkansas in all cases where a divorce is granted in favor of the wife. In such case the court is required to divide the personal property, to give her one-third thereof "absolutely," and to give her a life estate of one-third of the husband's lands. The Arkansas court could not secure to the wife the use of real estate outside of the jurisdiction of the court. In Wood v. Wood, 59 Ark. 441, 452, 27 S. W. 641, 644 (28 L. R. A. 157, 43 Am. St. Rep. 42), it is said:

"Appellant did not undertake to show, in her original or amended bill for divorce, that she was entitled to the benefits of the act of March 2, 1891. Her original bill was filed before it was passed, and it was not amended thereafter in that respect. For the purpose of showing that she was entitled to considerable alimony, she alleged in the original bill that the defendnot say in what his estate consisted, or that it was within the jurisdiction of the court. No information is given to show that the court had the jurisdiction, by reason of the quality and location of the property, to set apart to her one-third of it under the act. It might have been real estate situate in another state. Nothing appears in the record, outside of the evidence, to show that the court committed an error of law in failing to divide the estate of the husband in accordance with the act."

The above authorities clearly show just what the Legislature intended when it enacted section 2681, viz., that this section was enacted in order to permit the chancery courts of the state to award alimony to the wife in cases where the divorce was obtained at the suit of the husband on account of her misconduct. In such cases the Legisla-ant was not worth less than $200,000, but did ture very properly left it to the court to make "such order touching the alimony of the wife and care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable." But when, later on in the act, the Legislature considers the question as to what a wife shall be entitled to receive when a divorce is granted to her against her husband for his wrongdoing, they enacted section 2684 above quoted. Otherwise, why do they use the language, "where the divorce is granted to the wife," and the further expression "and the wife so granted a divorce against the husband shall be entitled," etc. It is clear that the purpose of the Legislature was that the amount which the wife should receive in such a case should not be enshrouded in any uncertainty by leaving it to the discretion of the court to say what should be a reasonable allowance to her, but fixed the amount, definitely, as to both the real and personal estate. There is nothing ambiguous in this section of the statute. Its terms are too plain to be misunderstood. It is clear

[4] We are unable to read that language of the court and reach any other conclusion than that the law of Arkansas limits the jurisdiction of a court of chancery in fixing alimony in a divorce case to property within the jurisdiction of the court. There was then just ground for the contention in the Arkansas court that that court had no jurisdiction to allow the wife alimony on account of the real estate of the husband in Nebraska. Was such a contention made? It is conceded, and the record before us clearly shows, that defendant did, with the help of able counsel, strenuously contend in the Arkansas court that that court could not in that case allow alimony to Bodie on account of the Nebraska

were unwarranted, that the court did have jurisdiction, and by these inconsistent positions he insists that he has defeated the just claims of his wife. This, of course, he cannot be allowed to do.

In Cross v. Levy, 57 Miss. 634, it was held that a party who had agreed that a justice

not afterwards, as against the same party, contend that the justice did not have such jurisdiction. In Long v. Lockman (D. C.) 135 Fed. 197, it was held that a party, who, in a suit in the District Court of the Arkansas District, had alleged that the District Court of the Colorado District had exclusive jurisdiction of the case and upon that contention had procured the case to be dismissed by the court of the Arkansas district, could not afterwards be heard to contend against the same party that the court of the Colorado district was without jurisdiction when sued in that district. The court said:

lands. And the record also shows that the court did not in fact make any allowance on account of the Nebraska lands. It is shown by the overwhelming weight of the evidence before us that the Arkansas court allowed Bodie $5,111 "in full of alimony and all other demands set forth in the cross-bill." The only demand set forth in the cross-bill, out-of the peace had jurisdiction of a case could side of alimony, was the restoration to her of $2,500 which she had loaned to Bates when they were living together as husband and wife. Deduct this sum from $5,111, and it will be seen that the total amount allowed for alimony was $2,611. Under the admissions of Bates and the uncontradicted evidence, he, at the time of the divorce trial, owned personal property and notes and mortgages within the jurisdiction of the Arkansas court, amounting in the aggregate to $7,000, and a house and lot, also within the jurisdiction of the court, worth $2,500. Under the statute Bodie was entitled "absolutely" to one-third of the $7,000 of personal property, or $2,333.33. She was also entitled to the present value of a one-third interest for life in the house and lot. If we figure that life interest at only $278, it would make her statutory interest in the property of Bates, situated in Arkansas, $2,611, being the sum allowed as alimony by that court. Hence it is idle to say that the chancellor considered the Nebraska land in fixing the amount of alimony. If he "considered" it, he considered it only to the extent of determining that he had no jurisdiction to take it into account in fixing the amount of alimony. It would be a travesty not only upon the law but upon the A party is estopped to deny facts pleaded commonest principles of justice for us to hold to defeat jurisdiction of court. Caldwell v. that the chancellor, when he decided the di- Morris, 120 La. 879, 45 South. 927, 15 L. R. A. vorce case and allowed Bodie $2,611 of ali- (N. S.) 423, 124 Am. St. Rep. 446, 14 Ann. Cas. mony, took into consideration personal property of the value of $7,000 and real estate to 1043, and cases cited in note. He cannot in the value of $2,500, located within the juris-one litigation insist that the court has no jurisdiction of specified property and succeed diction of his court, and also took into consideration the value of real estate in this in that contention, and afterwards in anothstate which the decree before us finds was worth $40,000 at the time the chancellor in Arkansas tried that case. If, in addition to the property within his jurisdiction, he had also taken into account the present value of an estate for life in one-third of land in

Nebraska, worth $40,000, the amount which he would have been compelled to allow would

have far exceeded the value of all the prop

erty which Bates owned in Arkansas at that

time. If he took into consideration the land in Nebraska, he was bound to consider it in the light of the law of Arkansas which would require him to allow her a life estate of onethird interest in the Nebraska land. He allowed her, all told, $2,611. Further comment is unnecessary. Res ipsa loquitur. From what has just been said, it will be seen that defendant succeeded in his contentions in the Arkansas court that that court was without jurisdiction, and prevented any allowance on account of the Nebraska land. He now, in this case, says that his contentions there

"In my opinion, Williams in his lifetime was, and the administrator now is, estopped from denying that his residence was in Colorado when the petition herein was filed. * **Every element of estoppel is in the evidence, and the evidence on that question is not in conflict. Williams, under oath, said his residence was in Colorado. He received the advantage from that oath. The petitioning creditors acted on it. They filed their petition here. They have incurred much expense by reason of that oath. It cannot now be controverted. those questions by, and hold that this court has jurisdiction upon the grounds of estoppel. And that filing pleadings, offering evidence, making objections, obtaining rulings, and so forth, in one case, may be an estoppel in another case see the following"-citing many cases.

* *

I pass

er litigation with the same parties insist that the court did have jurisdiction of that particular property and should have adjudicated it in the former action and so defeat any adjudication thereof entirely.

Is the judgment in the Arkansas court res judicata? Thomas v. Thomas, 27 Okl. 784, 109 Pac. 825, 113 Pac. 1058, 35 L. R. A. (N. S.) 124, 133, Ann. Cas. 1912C, 713, construing

an exactly similar statute, cites Bowman v.

Worthington, supra, and quotes with approval the holding in that case above set out,

and adds:

"The trial court not possessing jurisdiction to entertain the question of the disposition of this property in the divorce proceeding, the same did not become res adjudicata by reason of that action, hence is left open for determination in this case."

Matson v. Poncin, 152 Iowa, 569, 132 N. W. 970, 38 L. R. A. (N. S.) 1020, holds:

"A judgment to be available as an estoppel must have decided the particular matter involved in the later suit; it is not sufficient that the same question may have been determined."

In 1 Herman, Estoppel and Res Adjudi- [6-8] Finally we cite Slater v. Skirving, 51 cata, § 252, it is said: Neb. 108, 70 N. W. 493, 66 Am. St. Rep. 444. The opinion in this case was by Mr. Commissioner Irvine. sideration by that talented commissioner of a It shows a very careful conplea of res judicata. Beginning on the fourth line from the bottom of page 112 of 51 Neb., on page 494 of 70 N. W. (66 Am. St. Rep. 444), it is 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 appear 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 renderedthe whole subject-matter of the action will be at large, and open to a new contention, unless of chancery in which the case was tried. this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible."