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La Rue v. Kempf.

children, to recover from her former husband for their maintenance for ten years, defended on the ground that he was released from liability by an agreement entered into in connection with the divorce proceedings, under which he had paid her a sum of money in satisfaction of his liability for their maintenance, and on the ground that, in a former suit by plaintiff to recover for their maintenance for a period of thirteen months, in which defendant pleaded the same agreement as a release, judgment was entered for defendant, held that the briefs filed by the attorneys in the former action established that the question of the effect of the agreement in the divorce case was submitted in such action and determined in defendant's favor, and hence plaintiff was estopped, as a matter of law, from maintaining the present action, under the principle that a judgment in a former action is conclusive as to all questions that were actually in issue and adjudicated therein, notwithstanding the cause of action in the subsequent suit is not the identical cause of action that was involved in the former.

Appeal from St. Louis City Circuit Court. Hon. Daniel D. Fisher, Judge.

AFFIRMED.

H. C. Whitehill for appellant.

(1) There can be doubt that under the law of this State a father who obtains a divorce from his wife, or, who is divorced by his wife, is still liable to the mother for necessaries, support, education, etc., furnished the children of the marriage, where the decree of the divorce makes no provision for their maintenance, etc., where the custody of such children is left by the decree to the care and nurture of the mother. Rankin v. Rankin, 83 Mo. App. 336; McClosky v. McClosky, 93 Mo. App. 393; Meyers v. Meyers, 91 Mo. App. 151; Lukowski v. Lukowski, 108 Mo. App. 204; Shannon v. Shannon, 97 Mo. App. 119; Seely v. Seely, 116 Mo. App. 362. (2) Error was committed by the court in allowing defendant to testify he was ready, able and willing to take and support the children, which could not possibly be a

La Rue v. Kempf.

good defence or excuse for not providing their mother with the means of their support, or for not reimbursing her for such expense. McClosky v. McClosky, 93 Mo. App. 402. (3) The court erred in refusing to declare as a matter of law that the suit mentioned in the evidence and the pleadings as having been instituted by plaintiff against defendant before a justice of the peace, was not res adjudicata. 23 Cyc., p. 1178; Foundry & Machinery Co. v. Mfg. Co., 100 Mo. App. 414; State v. Hollingshead, 83 Mo. App. 682; Garland v. Smith, 164 Mo. 22; 23 Cyc., p. 1166; Scott v. Black, 96 Mo. App. 472; McKenzie v. Donnell, 208 Mo. 63; Cromwell v. County of Sac, 94 U. S. 351; Baumhoff v. Railroad, 205 Mo. 248. While it is true a single cause of action cannot be split, yet a single contract, such as the liability of a father for the support of the minor children may give rise to several causes of action. William v. Kitchen, 40 Mo. App. 604; Railroad v. U. S., 168 U. S. 48; Womach v. St. Joe, 201 Mo. 479; Baumhoff v. Railroad, 205 Mo. 248.

Schnurmacher & Rassieur for respondent.

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(1) It is true that in the absence of provision for the support and maintenance of minor children, the father continues primarily liable therefor after divorce, and the mother, having their custody, may recover the cost of such support and maintenance from him, should he refuse to provide it. McCloskey v. McCloskey, 93 Mo. App. 393; Shannon, 97 Mo. App. 119; Lukowski v. Lukowski, 108 Mo. App. 204. (2) But that rule has no application to the case at bar, because the proof shows that substantial and satisfactory provision was made and a stipulation was placed on file in the divorce proceedings, evidencing that fact. The proof further shows that plaintiff accepted the amount paid her, in satisfaction of any claim she might have against defendant for the sup

La Rue v. Kempf.

port of the children during minority. Dixon v. Dixon, 107 Mo. App. 682. (3) The question of defendant's liability to plaintiff is concluded by a final judgment between the parties, rendered in 1901, involving precisely the same questions now presented. The only difference between the former case and the present is as to dates. The liability sought to be enforced, the ground for it and the defenses interposed, are exactly the same. The period of time covered is the only difference. The former judgment is therefore res judicata. Bigelow on Estoppel (2 Ed.), 45; Freeman on Judgments, sec. 253; 24 Am. & Eng. Enc. Law (2 Ed.), p. 780; Cromwell v. Sac County, 941 U. S. 351; Freeman v. Barnum, 131 Cal. 386; Koehler v. Holt Mfg. Co., 146 Cal. 335; Markley v. People, 171 Ill. 260; Reynolds v. Mandel, 175 Ill. 615; s. c... 73 Ill. App. 379; Marshall v. Clothing Co., 184 Ill. 421, s. c., 83 Ill. App. 338; Rowell v. Smith, 123 Wis. 510; Railroad v. Cass County, 72 Neb. 489; Danziger v. Williams, 91 Pa. St. 234; Merriam v. Whittemore, 5 Gray, 316. (4) Where a suit is for the identical cause of action as that submitted and determined in a former suit, between the same parties, the judgment in the first suit is a conclusive bar, not only as to every matter which actually was offered or received to sustain or defeat the claim, but as to every other permissible matter which might or could have been offered by either party for that purpose. But where the second suit is upon the same general, but not upon the identical, claim or cause of action, then the former judgment operates as an estoppel only as to those matters, in issue, which were actually litigated and determined. Dickey v. Heim, 48 Mo. App. 114, and cases cited under point 3. (5) (5) Where the pleadings and judgment in the former action, offered as a bar, do not disclose the precise point or question litigated and determined, the party seeking to avail himself of the judgment may prove, by extraneous evidence,

La Rue v. Kempf.

the precise point or question in issue and decided. Freeman on Judgments, sec. 273; Cromwell v. Sac County, 94 U. S. 353; Spradling v. Conway, 51 Mo. 51; West v. Moser, 49 Mo. App. 201. (6) As to the conclusiveness of the judgment, it matters not whether the former adjudication was right or wrong in law, or whether, upon the facts, its conclusion was correct or incorrect; such judgment is conclusive between the parties in all subsequent proceedings where the same point is in issue and where the doctrine applies. Roth Tool Co. v. Spring Co., 46 Mo. App. 1. Nor will it even matter that subsequent decisions may have somewhat modified the former adjudication; because, as to the same parties and the same issues, it remains conclusive. Turnverein v. Hagerman, 232 Mo. 693.

ALLEN, J.-This is an action whereby plaintiff seeks to recover from her former husband for the support and maintenance of two minor children of plaintiff and defendant, alleged to have been provided by plaintiff during the period from October 1, 1900, to October 1, 1910. The cause was tried before the court and a jury, resulting in a verdict and judgment for the defendant, and the plaintiff appeals.

The petition alleges that the plaintiff and defendant were married in 1896, and lived together as husband and wife until on or about December 24, 1898, during which time there were born of the marriage two children. It is alleged that the defendant abandoned plaintiff and said minor children on or about December 24, 1898, and took up his residence in the State of North Dakota where, on September 1, 1899, he obtained a decree of divorce from plaintiff, by the terms of which decree plaintiff (defendant in the divorce proceeding) was awarded the custody and control of said minor children. And it is averred that from October 1, 1900, to October 1, 1910, the defendant neglected and refused to provide for said minor chil

La Rue v. Kempf.

dren or either of them, except that he furnished plaintiff approximately $200 on account thereof; that plaintiff provided for their support and maintenance, the reasonable value thereof being $50 per month, a total of $6000. And judgment is prayed for the sum of $5800.

The answer denies that defendant abandoned plaintiff, or said minor children; but admits that he took up his residence in the State of North Dakota, where he obtained a decree of divorce from plaintiff as alleged by her. The answer further denies that defendant neglected and refused, during the period in question, to provide for said minor children, and avers that he expended certain sums of money for their support during such time. And it is alleged that defendant repeatedly offered to take said children and rear them, but that plaintiff refused to permit him so to do.

The answer further avers that, at the time of the divorce proceedings in North Dakota, defendant paid to plaintiff the sum of $4500 for the maintenance and support of herself and said minor children, during the latter's minority, which plaintiff accepted and received as and for a suitable and satisfactory provision therefor.

The answer then alleges that, on October 3, 1900, plaintiff instituted against defendant an action before a justice of the peace in the city of St. Louis to recover $500 for the support and maintenance of said children from September 1; 1899, to October 1, 1900; that in said action judgment was rendered by the justice of the peace in favor of defendant; that plaintiff thereupon prosecuted an appeal to the circuit court of the city of St. Louis, where, upon a trial de novo, judgment was again rendered for defendant, from which no appeal was prosecuted. And it is averred that the same identical issues were involved in said former suit as are involved herein; and defendant pleads said

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