Sidor som bilder

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 in the husband expressed his desire to avoid tended to produce that result, on the famil- such a finding, but instead of consenting to iar principle that sane men usually mean this proposition, the paper filed by the wife to produce those results which naturally and insisted that she was entitled to the finding, legitimately flow from their actions. And, that she had always refused to waive it, if he so intended, her leaving him would, and that she demanded it. The court obviin the case put, be desertion on his part, ously considered that the wife was entitled and not by the wife.”

to the right which she thus claimed, since In the second place, even if the rule of it made the very finding upon which the public policy enunciated by the supreme wife insisted, and which the paper filed by court of Illinois be put out of view, the the husband sought to avoid, and the conassumption that the Illinois decree was a duct of the husband, in excepting to the consent decree, merely registering an agree-finding as made by the court demonstrates ment of the parties, disregards the form of that he regarded it as a judicial determinathat decree, and cannot be indulged in with tion of the issue of absence of fault on the out failing to give effect to the very face part of the wife. And the modified order of of the decree, which adjudged that the sepa- reference gives rise but to the inference that, ration of the wife from the husband was in view of the admission of the husband, it without her fault. This was an express find was not deemed necessary, for the purpose ing by the court, and one which the law re- of the trial, to take further testimony in required to be judicially made.

spect to the conceded fact, or for the master In the third place, if it be conceded that to report in detail concerning the evidence the express terms of the decree could be as to the misconduct of the husband which overcome by considering matters contained led to the separation. This also explains the in the record, but outside of the decree, the statement of the judge, made in the certificonclusion drawn by the supreme court of cate of evidence, as to the controversy reCalifornia from the consideration of such garding the terms of the decree, and his rematters was, we think, a mistaken one. As fusal to find that all the charges made in we have said in stating the facts, after the the bill had been proven. This view of the bringing of the suit for separate mainte- matters relied upon by the California court nance, in which charges of the gravest char- was one expressly adopted by both the apacter were made against the husband as to pellate court and by the supreme court of cruelty, adultery, etc., much testimony had Illinois in deciding the appeal taken by the been taken with regard to the charges. And husband. On that appeal, as we have said, it was in this state of the case that the exhe complained of the action of the court, inparte stipulation of the husband was filed, cluding the finding that the wife was living in which he admitted that the wife was liv- separate without fault on her part. 79 Ill. ing separate and apart from him without App. 590, 180 11l. 481, 54 N. E. 537. 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 mainte

to 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 husband was relevant and required an analground of desertion, it becomes impossible ysis of the testimony,—an analysis which to hold that the decree was a mere register-embraced necessarily those elements of proof ing of an agreement between the parties, which entered into the question of the and not the judicial action of the court. causes of the separation. Certainly, when the papers filed by the hus- But if it be considered that, in any aspect, band and wife are considered, there is no the decree under review was a consent deroom for the contention that a judicial find-'cree, 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. soning of its opinion may be conceded to Great Western Teleg. Co. 161 Ill. 522, 44 N. have been erroneous. That ground is this: E. 891) are not authoritative upon the In Illinois, it is contended, it has been setproposition that such decree would not, in tled that a decree in a suit for separate the courts of Illinois, have the effect of res maintenance is not res judicata in a suit judicata. The first of the cases-considered for divorce on the ground of desertion, and by this court in Gay v. Parpart, 106 U. S. vice versa; therefore the Illinois decree 689, 27 L. ed. 260, 1 Sup. Ct. Rep. 456, et should not have been given in California any seq.-dealt merely with the right of a court greater effect. Two cases are relied upon. of equity to refuse to lend its aid to enforce Wahle v. Wahle, 71. Ill. 510, and Umlauf v. an incomplete and ineffective decree in par- Umlauf, 117 Ill. 584, 57 Am. Rep. 880, 6 N. tition proceedings, because to do so would be E. 455. But these cases do not sustain the inequitable. In the second of the cases it was proposition based on them. In the Wahle but decided that a fraudulent decree might case the husband had sued his wife for be set aside in a court of equity.

divorce on the ground of abandonment, and The general rule in Illinois undoubtedly she, in addition to answering, had filed a is that a consent decree has the same force cross bill charging the husband with cruelty and effect as a decree in invitum. Knobloch and adultery, and praying for separate mainv. Mueller, 123 Ill. 554, 17 N. E. 696; tenance. The principal cause was first heard O'Connell v. Chicago Terminal Transfer R. and decided adversely to the husband. SubCo. 184 Ill. 308, 325, 56 N. E. 355. Thus, in sequently the cross bill was heard and a deKnobloch v. Mueller, the court said (123 cree of dismissal was rendered. This was alIll. 565, 17 N. E. 699):

leged to be error, on the ground that the "Decrees of courts of chancery, in respect verdict of the jury on the issue of divorce, of matters within their jurisdiction, are as in favor of the wife, was a judicial determibinding and conclusive upon the parties and nation, establishing the facts alleged in her their privies as are judgments at law; and cross bill, and justifying her in living apart a decree by consent in an amicable suit has from her husband. But the supreme court been held to have an additional claim to be of Illinois held that as the verdict of the considered final. Allason v. Starlc, 9 Ad. & jury in the divorce suit was general, and did El. 255. Decree so entered by consent cannot not indicate upon what particular finding be reversed, set aside, or impeached by bill it was based, the court could not know of review or bill in the nature of a bill of upon what fact the jury were induced to review, except for fraud, unless it be shown find as they did, and that in consequence the that the consent was not in fact given, or bill did not necessarily establish that the something was inserted, as by consent, that separation of the parties was without fault was not consented to. 2 Dan. Ch. Pr. 1576; on the part of the wife, since the verdict Webb v. Webb, 3 Swanst. 658; Thompson v. might have proceeded upon either of the folMaxwell Land-Grant & R. Co. 95 U. S. 391, lowing grounds: 1, that the abandonment 24 L. ed. 481; Armstrong v. Cooper, 11 Ill. was for less than two years; 2, that it was 540; Cronk v. Trumble, 66 Ill. 432; Haas v. by mutual consent; or, 3, that it was inChicago Bldg. Soc. 80 Ill. 248; Atkinson v. duced by the acts of the husband, whatever Manks, 1 Cow. 693; Winchester v. Winches- might have been the fault of the wife. ter, 121 Mass. 127; Allason v. Stark, 9 Ad. In Umlauf v. Umlauf, the wife filed a bill & El. 255; Alexander v. Ramsay, 5 Bell, for separate maintenance but, failing to esApp. 69. See, also, note to Duchess of King- tablish her right, the bill was dismissed. ston's Case, 2 Smith, Lead. Cas. *826 et seq. Subsequently the husband filed a bill for It is the general doctrine that such a decree divorce, charging wilful desertion by the is not reversible upon an appeal or writ of wife from the date of the filing of her bill error, or by bill of review for error. Arm- against him for separate maintenance. Upon stong. v. Cooper, 11 Ill. 540."

the hearing of the divorce case the court adAnd the assertion that the particular mat- mitted in evidence, against the objection of ters relied upon in this cause are of such a the wife, the pleadings and the decree character as to take this case out of the against her in the suit for separate mainrule just stated is conclusively shown to be tenance, and also excluded all evidence on without merit by the decision of the appel- her part tending to disprove the charge of late court and the supreme court of Illinois, desertion. From a judgment granting the affirming the decree of separation and the divorce the wife appealed. The supreme finding therein made.

court of Illinois prefaced its consideration In the argument at bar there is a ground of the question with the following state. taken which was not referred to in the opin- ment (p. 584, Am. Rep. p. 881, N. E. p. ion of the supreme court of California, 456): which, it is insisted, shows that that court “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 tion? That the issue of wilful desertion court having competent authority and juris- present in the divorce action was identical diction to hear and determine the same, with the issue of absence without fault, presuch decision and deter:vination of the ques-sented in the Illinois maintenance suit, is tion will be deemed final and conclusive manifest. The separation, asserted by the upon the parties and their privies in all fu- wife in her bill for separate maintenance to ture litigation between them in which the have been without her fault, was averred to same question arises, so long as the judg- have taken place on February 1, 1890, and ment remains unreversed or is not otherwise such separation was stated by the husband set aside."

in his answer to the bill to have been an But the court held that these elementary abandonment and desertion of him. The wil. principles did not apply, because the decree ful desertion charged in the complaint in against the wife in the separate mainte- this action for divorce was averred to have nance suit was general, and might have been been committed "on or about the month of entered solely upon the ground that the February, 1890, and to have been continuous wife was not without fault, leaving unde- thereafter.” And the identity between the cided the question whether the husband was two is further demonstrated by the circumin any way at fault, and, therefore, there stance that the evidence taken in the Illiwas not identity, and resulting res judicata. nois case bearing upon the cause for the

The inappositeness of these cases to the separation was used upon the trial in this present one becomes obvious when it is re- case. The question in each suit, therefore, called that in this case there was a decree was whether the one separation and living not against, but in favor of, the wife in the apart was by reason of the fault of the wife. maintenance suit, which decree necessarily From the standpoint of a decree in favor of conclusively settled that the separation was the wife in the suit for separate maintefor cause and was without fault on the part nance the issues raised and determined were of the wife, and therefore was not a wilful absolutely identical. desertion of the husband by the wife, which The controversy before us is, in some reis the precise issue in the divorce case now spects, like that which was considered in here.

Barber v. Barber, 21 How. 582, 16 L. ed. In the brief of counsel it is stated that, 226. There a bill was filed in a Federal under the law of California, if a wife is court in Wisconsin to enforce judgment for living apart from her husband under cir- alimony under decree of separation cumstances which do not constitute deser- a mensa et thoro, rendered against a hustion, yet such living apart may become de band in New York. It was shown by the sertion if the husband in good faith invites evidence that, to avoid the payment of the the wife to return, and she does not do so. alimony, the husband had left the state of In this connection reference is made to cer- New York, the matrimonial domicil, and tain requests proffered by the husband for taken up his residence in the state of Wisthe wife to return, which, it is urged, caused consin, where he obtained a decree of dithe separation to become desertion under the vorce on the ground of desertion by the wife. California law. But, conceding, without de-Whilst this court refrained from expressing ciding, that the California law is as as- an opinion as to the legality of the Wisconserted, the proposition of fact upon which sin decree of divorce obtained under these the argument rests amounts simply to deny circumstances, it enforced the New York ing all effect to the Illinois decree. This judgment for alimony, and held it to be follows, because all the requests to return binding. And that it was considered that referred to were made in Illinois before the the judgment in New York legalizing the entry of the final decree in the suit for separation precluded the possibility that the separate maintenance, were referred to in same separation could constitute wilful dethe answer in that case, and were adversely sertion of the wife by the husband plainly concluded by the judgment which was ren- appears from the following excerpt from the dered. Johnson v. Johnson, 125 Ill. 510, opinion-italics mine (p.588, L. ed. p. 228) : 16 N. E. 391.

“It also appears from the record that the Having thus disposed of all the conten- defendant had made his application to the tions based upon the assumed consent under court in Wisconsin for a divorce a vinculo i the decree for separate maintenance or the from Mrs. Barber without having disclosed asserted limitations to such a decree, based to that court any of the circumstances of upon the law of Illinois, we are brought to the divorce case in New York, and that, consider the final question, which is, was contrary to the truth, verified by that the decree in favor of the wife for separate record, he asked for the divorce on account maintenance, entered in the Illinois case,' 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 legal

Plff. in Err., ized by judicial decree was a conclusive determination that the same separation was COMMONWEALTH OF VIRGINIA. not wilful desertion. Thus, in Miller v. Miller, 150 Mass. 111, 22 N. E. 765, ex- State taxation of vessels engaged in inter. plicitly approved in Watts v. Watts, 160 state commerce-effect of enrollment or Mass. 464, 23 L. R. A. 187, 39 Am. St. Rep. registry outside the state. 509, 36 N. E. 479, after holding that an adjudication of a probate court that a wife is Vessels which, though engaged in interstate living apart from her husband for justifiable

commerce, are employed in such commerce

wholly within the limits of a state, are subcause was a bar to an action by the husband

ject to taxation in that state, although they for divorce on the ground of utter desertion,

may have been registered or enrolled under the court, speaking of the decree of the pro- U. S. Rev. Stat. $$ 4141, 4311, U. S. Comp. bate court, said:

Stat. 1901, pp. 2808 and 2959, at a port "The fact determined by it is inconsist

outside the limits of the state. ent with the necessary allegation in the libel

[No. 231.] that the libelee previously had utterly de

, ing such desertion. Utter desertion, which argued April 25, 26, 1905. Decided May 15,


1905. is recognized by the statute as a cause for divorce, is a marital wrong. Because the deserter is a wrongdoer , the law gives the de- INERROR to the Supreme Court of Ap

peals of the State of Virginia to review serted party a right to a divorce. If a wife

a judgment affirming, on appeal, a finding of leaves her husband for a justifiable cause it the state corporation commission declaring is not utter desertion within the meaning taxable, under the laws of the state, cerof the statute, and a wife who has utterly tain vessels belonging to a foreign corpodeserted her husband, and is living apart ration, registered or enrolled at a port outfrom him in continuance of such desertion, side the limits of the state, and employed in cannot be found to be so living for justifia- interstate commerce wholly within the limble cause. Pidge v. Pidge, 3 Met. 257, 261; its of the state. Affirmed. Fera v. Fera, 98 Mass. 155; Lyster v. Lys

See same case below, 102 Va. 576, 102 Am. ter, 111 Mass. 327. The court should have St. Rep. 855, 46 N. E. 783. ruled as requested by the libelee, that the decree of the probate court was a bar to the Statement by Mr. Justice Brewer: maintenance of this libel. Exceptions sus- On March 17, 1904, the supreme court of tained."

appeals of the state of Virginia, in a matWe are of opinion that the final decree ter appealed from a finding of the state corof July 26, 1897, entered in the circuit court poration commission, entered the following of Cook county, Illinois, in legal effect es- findings and order: tablished that the separation then existing, “That the Old Dominion Steamship Comand which began contemporaneously with pany was a nonresident corporation, having the filing of the bill in that cause in Febru- been incorporated by the senate and house ary, 1890, was lawful, and therefore con- of representatives of the state of Delaware;

, clusively operated to prevent the same sepa- that it was then and had been for many ration from constituting a wilful desertion years theretofore engaged in the transportaby the wife of the husband. From these con- tion of passengers and freight on the Atlanclusions it necessarily follows that the issue tic ocean and communicating navigable wapresented in this action for divorce was iden- ters, between the city of New York, in the tical with that decided in the suit in Illinois state of New York, and Norfolk, and cerfor separate maintenance. This being the tain other ports within the state of Vircase it follows that the supreme court of ginia. That said steamship company, in California, in affirming the judgment of di- the prosecution of its said transportation vorce, failed to give to the decree of the business, owned and operated the vessel Illinois court the due faith and credit to property above named; that these vessels, which it was entitled, and thereby violated with the exception of the tug Germania, the Constitution of the United States. whose movements and use will be herein

The judgment of the Supreme Court of after stated, visited various ports or points California must therefore be reversed, and within the state of Virginia, for the purpose the cause be remanded for further proceed- of receiving freight and passengers, for ings not inconsistent with this opinion. which they issued bills of lading and tickets. And it is so ordered.

to points outside the state of Virginia;

that, owing to the shallow waters where Mr. Justice Brown concurs in the result. 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 that in consequence the

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

"First. The steamer Hampton Roads, be- sell liquor at retail on each of these steamtween Fort Monroe and Hampton and Nor-ers on their route between the cities of Richfolk.

mond and Norfolk, and likewise, on or about “Second. The steamer Mobjack, between the same time, complied with the revenue points in Mathews and Gloucester counties laws of the United States in the matter of and Norfolk.

selling liquor at retail on each of the said “Third. The steamers Luray and Acco- steamers on said route. mac, between Smithfield and Norfolk.

“Sixth. The steam tug Germania, which “Fourth. The steamer Virginia Dare, be- was used in the harbor of Norfolk and tween Suffolk and Norfolk.

Hampton Roads for the purpose of docking "Fifth. The steamers Berkeley and Bran- | the large ocean-going steamers of the Old don, between Richmond and Norfolk; and Dominion Steamship Company, and the

“The steamers Berkeley and Brandon ply transferring from different points in those between Richmond and Norfolk. These two waters freight from connecting lines dessteamers were completed in the year 1901, tined to points outside of Virginia. 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,

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