Argument for Plaintiff in Error.

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Stockton v. Ford, 18 How. 414; Hopkins v. Lee, 6 Wheat. 109; Smith v. Kernochan, 7 How. 198; Young v. Black, 7 Cranch, 565; Gaines v. Miller, 111 U. S. 395; Eldred v. Bank, 17 Wall. 575; Marine Ins. Co. v. Young, 1 Cranch, 332; Thompson v. Roberts, 24 How. 233; Goodrich v. Chicago, 5 Wall. 566; Foster v. The Richard Busteed, 100 Massachusetts, 412.

A final decree in chancery is as conclusive as a judgment. at law. Shriver v. Lynn, 2 How. 43; Bridge Co. v. Stewart, 3 How. 413; Pennington v. Gibson, 16 How. 65; Nations v. Johnson, 24 How. 195; Bryan v. Bennett, 113 U. S. 179.

The issues in the California case and in the Illinois case were identical, and they were treated as identical by the California court. The fact that the two actions were different in form makes no difference as respects the faith and credit clause of the Constitution.

The California court was bound by the adjudication by the Illinois court, and, in disregarding the Illinois decree the California court deprived plaintiff in error of a right under the Federal Constitution and statutes. Const. U. S., Art. IV, §1; Rev. Stat. § 905.

The clause referred to applies to decrees of divorce, Atherton v. Atherton, 181 U. S. 155, and means that the court of a State must allow to a judgment of a sister State the same effect that it has in the State where rendered. Mills v. Duryee, 7 Cranch, 481; Renaud v. Abbott, 116 U. S. 277; Hilton v. Guyot, 159 U. S. 113, 181.

While this court, on writ of error to the Supreme Court of a State, will not take judicial notice of the law of another State, yet where the court, whose decision is under review, does take judicial notice of the law of another State, this court will do the same. Renaud v. Abbott, 116 U. S. 277; Hanley v. Donoghue, 116 U. S. 1.

The Illinois judgment was not a consent decree. The judgment speaks for itself. Campbell v. Wilson, 195 Illinois, 284; Armstrong v. Cooper, 11 Illinois, 540.

Even if the decree were a consent decree it would have the

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same binding effect as though it were a decree in invitum. Knoblock v. Mueller, 123 Illinois, 554, 565; O'Connell v. Railway Co., 184 Illinois. 308, 325; Lagerquist v. Williams, 74 Ill. App. 17.

A judgment upon a cognovit concludes the parties.

A judgment entered, where upon trial a party waives proof of and formally admits a fact, is conclusive. A judgment rendered upon an admission of fact or by consent, is conclusive on the parties to the same extent as though rendered upon a contest. Black on Judgments, § 705; Railway Co. v. United States, 113 U. S. 261; Burgess v. Seligman, 107 U. S. 20; Thomson v. Wooster, 114 U. S. 104; Bank v. Higginbottom, 9 Pet. 48; United States v. Parker, 120 U. S. 89. The rule also applies to judgments by default. Harshman v. Knox Co., 122 U. S. 306. Also to judgment on demurrer. Gould v. Railroad Co., 91 U. S. 526; Bissell v. Springvalley, 124 U. S. 225.

The Supreme Court of California misconceived the Illinois decisions and rule. Wadhams v. Gay, 73 Illinois, 415, and Farwell v. Gt. West. Tel. Co., 161 Illinois, 522, distinguished.

The rule in California is, that in the absence of proof, the courts of California will presume that law of another State to be the same as the law of California. Shumway v. Leskey, 67 California, 458. The presumption is even extended to the statute law of California. Cavallaro v. Railroad Co., 110 California, 348. Applying the rule of California, a judgment by stipulation is conclusive as to all matters within the issue. McCreery v. Fuller, 63 California, 30; Partridge v. Shepard, 71 California, 470.

The State of California never was the matrimonial domicil of the parties, and, therefore, the courts of California had no jurisdiction of their matrimonial status, and the decree of the California court was consequently for this reason also, er

roneous.

Mrs. Harding had always, since her marriage, lived in Illinois. California had never been the matrimonial domicil of the parties and it is to be presumed her residence, the status VOL. CXCVIII-21

Argument for Defendant in Error.

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and the matrimonial domicil remained in Illinois. Cal. Civ. Code Proc. § 1693, par. 32.

A suit for a divorce is a proceeding in rem. The status of the parties is the res. In a proceeding in rem the jurisdiction of the court over the res must affirmatively appear.

The matrimonial status-the res-was created and established in Illinois, it not appearing that this status had ever been removed to California, the California courts had no jurisdiction of the suit. In a proceeding in rem the court will not presume that the res existed within the jurisdiction of the court, but it must be averred and proved.

This court has not, as yet, directly passed upon the points made in this division of the brief, but in several cases it has especially reserved the question. Bell v. Bell, 181 U. S. 175; Streitwolf v. Streitwolf, 181 U. S. 179; Andrews v. Andrews, 188 U. S. 14, 40.

Mr. William H. Barnum for defendant in error:

The Illinois decree and the decree as modified was not final, irrevocable and immutable, but the allowances thereby made were subject to alteration, reduction and even extinguishment. Audubon v. Shufeldt, 181 U. S. 575; Welty v. Welty, 195 Illinois, 345; Cutler v. Cutler, 88 Ill. App. 464.

It is doubtful whether any decree so alterable, revocable, interlocutory or non-final in its nature can be in any case successfully pleaded as a bar or estoppel.

Neither the decree, the modified decree, nor the stipulation, nor all combined, created a bar or estoppel against the prosecution of the California divorce suit, nor against proving therein the truth of the charge of willful desertion, nor against proving any fact whatever essential or material to the establishment of said charge.

The stipulation to the effect that she was living apart without her fault is to be treated not as a statement made because it was true, or from any conviction of its truth, but only as a convenient assumption for the purpose in hand, the ending

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of litigation and adjustment of family differences; hence neither the stipulation nor decree based on it can be held as an estoppel. Greenleaf, Ev. § 204; Succession of Harris, 39 La. Ann. 443.

The decree, so entered, was not a judicial determination, but absolutely void, and not entitled to respect in any other tribunal, as an estoppel or otherwise. Windsor v. McVeigh, 93 U. S. 274; Gay v. Parport, 106 U. S. 679.

The issues in the two cases were not identical, hence there was no estoppel. Wahle v. Wahle, 71 Illinois, 513; Umlauf v. Umlauf, 117 Illinois, 584; Freeman on Judgments, § 258; Burlen v. Shannon, 3 Gray, 387; Sawyer v. Woodbury, 7 Gray, 502; Megerle v. Ashe, 33 California, 74, 84; Howe v. Lockwood, 17 N. Y. Supp. 817; Pearce v. Frantum, 16 La. Ann. 414.

Mr. Harding, while entitled if he chose to make the wife's willful desertion after it had continued two years a distinct issue in the maintenance case by filing an answer and prosecuting a cross bill distinctly and directly making it such an issue and praying for a divorce on that ground, was not obliged to do so; but might confine his defense wholly to the charge made by his wife, without thereby losing or surrendering his reserved right to ask for a divorce on the ground of willful desertion or any other statutory ground. Cromwell v. Sac County, 94 U. S. 351, 371; Watts v. Watts, 160 Massachusetts, 464.

Further, there was no identity of the question raised under the Illinois statute in the Illinois court-even if that question had been litigated and judicially determined-with the question raised by the pleadings in divorce case. Russell v. Place, 94 U. S. 606; Beronio v. Ventura Lumber Co., 129 California, 236.

To constitute estoppel by matter of record there must be entire identity of the issue decided and the issue to which the estoppel is sought to be applied, and for additional illustration of the rule, see Freeman v. Barnum, 131 California, 386; McDonald. v. B. R. &c. M. Co., 15 California, 145; Williams

v. Williams, 63 Wisconsin, 58; Aspen v. Parker, 2 Burr. 666.

Further the estoppel fails because the finding in the present case does not relate to the same time as the finding in the former case, and hence the estoppel lacks the identity required. King v. Chase, 15 N. H. 16; Coke upon Littleton, L. 3, c. 12, § 567; Bigelow on Estoppel, 3d ed., 578, and p. 77; People v. Frank, 28 California, 507; Brown v. Mayer, 66 N. Y. 385; Blair v. Bartlett, 75 N. Y. 150; Nemetty v. Moylin, 100 N. Y. 562; Orr v. Mercer County Ind. Co., 114 Pa. St. 367.

Findings outside the issues have no effect as to estoppel. Lillis v. Erie Ditch Co., 95 California, 858; Russell v. Place, 94 U. S. 606.

Only upon issues upon which judgment depends are parties estopped. 1 Greenleaf, § 528; McDonald v. Black Co., 15 California, 145; Gray v. Dougherty, 25 California, 272; Bozquit v. Crane, 51 California, 505; Sawyer v. Boyle, 21 Texas, 28; Lentz v. Williams, 17 Pa. St. 412; Lewis v. Nelson, 67 Pa. St. 153; Ford v. Ford's Adm., 68 Alabama, 41; Car v. Buehler, 120 Pa. St. 341; Williams v. Williams, 63 Wisconsin, 58; People v. Johnson, 38 N. Y. 63; 2 Smith's L. Cas., 10th ed., 2013; Murdock v. Memphis, 20 Wall. 590.

MR. JUSTICE WHITE delivered the opinion of the court.

The law of Illinois (Laws of Illinois, 1877, p. 115) provided as follows:

"That married women who, without their fault, now live or hereafter may live, separate and apart from their husbands, may have their remedy in equity in their own names, respectively, against their said husbands for a reasonable support and maintenance while they so live separate or have so lived separately and apart; and in determining the amount to be allowed the court shall have reference to the condition of the parties in life, and the circumstances of the respective cases; and the court may grant allowance to enable the wife to prosecute her suit, as in cases of divorce."