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been awarded their custody; and her refusal to permit this would afford no justification to him for refusing to provide for their support and maintenance. [See McCloskey v. McCloskey, 93 Mo. App. 393, 67 S. W. 669.]

It was error to admit this testimony, and likewise to give the instruction in question, predicated upon such testimony. Such errors would ordinarily be highly prejudicial in a case of this character; but, for reasons which will be made to appear later, we think that they are here not reversible errors.

IV. As to the plea of former adjudication: The court evidently proceeded upon the theory that the judgment in the former suit was conclusive upon plaintiff here, precluding her recovery, if it was determined and adjudicated therein that the defendant was relieved from liability in the premises by reason of the agreement in North Dakota and the payment of the money by defendant thereunder. The matter, however, was referred to the jury by an instruction which directed a verdict for defendant in the event that the jury found that, in said former action, "the same questions were presented and submitted by the plaintiff and defendant as have been presented and submitted in the present cause."

It is earnestly insisted by learned counsel for appellant that the judgment in the former action cannot be invoked here, in bar or as an estoppel, and that the court should have so declared as a matter of law. This is said to be so particularly for the reason that the cause of action is not the same as that sued upon in the former action, and that the proof of the items claimed by appellant in this proceeding, covering the period of ten years in question, was necessarily not the same as that adduced in support of the former demand for support and maintenance of the children for the prior period of thirteen months.

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As to the effect of the former judgment, it may be well to refer to certain general principles which should be here borne in mind. There is more or less. confusion in the cases relative to the matter of former adjudication; and it is, of course, not possible to reconcile all of the cases, much less the dicta to be found therein. However, the principles here involved appear to be clear and firmly established in our jurisprudence.

.

There is a marked difference between the effect of a former judgment as a bar to the prosecution of a second action upon the same identical claim or demand, and the estoppel arising from the previous adjudication of some question upon which liability hinges in the subsequent suit, where the latter involves a different cause of action. Here it seems quite clear that the former suit between these same parties was not to enforce the same identical cause of action as that now sued upon. There the demand was for a different amount, claimed to be due for an entirely different period of time; and though the same questions may have been involved, affecting the right of recovery, the cause of action was not identically the same as that here sued upon, and the rules to be applied are those which must obtain in such a situation.

In the famous case of Rex v. The Duchess of Kingston, 20 How. St. Tr. 538, 2 Smith, Lead. Cas. (8 Ed.), 784, the statement of the law governing the force and effect of judgments and decrees was formulated as follows:

"From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive

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jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. But neither the judgment of a (court of) concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment."

In the leading case of Cromwell v. County of Sac, 94 U. S. 351, the rule is stated as follows:

"In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.

"But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon

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such matters is the judgment conclusive in another action."

In Cyc. the rule is thus stated: "The true test is identity of issues. If a particular point or question is in issue in the second action, and the judgment will depend upon its determination, a former judgment between the same parties will be final and conclusive in the second if that same point or question as in issue and adjudicated in the first suit, otherwise not. Or, as the rule is otherwise stated, in a second action between the same parties on a demand different from that in the first action, the judgment in the first action is an estoppel only as to the points controverted, on the determination of which the finding or verdict was rendered. And in order that this rule should be applied, it must clearly and positively appear, either from the record itself or by the aid of competent extrinsic evidence, that the precise point or question in issue in the second suit was involved and decided in the first." [See 23 Cyc., p. 1300 et seq.]

In Bigelow on Estoppel, 1. c. 45, after the discussion of many interesting cases, it is said:

"The rule in these cases is that a point once adjudicated by a court of competent jurisdiction, however erroneous the adjudication, may be relied upon as an estoppel in any subsequent collateral suit, in the same or any other court, at law, or in chancery, or in admiralty, when either party, or the privies of either party, allege anything inconsistent with it; and this too, whether the subsequent suit is upon the same or a different cause of action. The cases upon this subject are very numerous."

That where the cause of action in the subsequent suit is not the same identical cause of action as that involved in the former, the judgment is nevertheless conclusive as to all questions which were actually in issue and adjudicated in the former proceeding is

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abundantly supported by the authorities, both in this State and elsewhere. [See Garland v. Smith, 164 Mo. 1. c. 22, 64 S. W. 188; Turnverine v. Hagerman, 232 Mo. 693, 135 S. W. 42; Dicky v. Heim, 48 Mo. App. 1. c. 118; Barkhoefer v. Barkhoefer, 93 Mo. App. 1. c. 381, 382, 67 S. W. 674; Paving Co. v. Field, 132 Mo. App. 628, 97 S. W. 179; Roberts v. Neal, 137 Mo. App. 1. c. 115, 119 S. W. 461; Hartwig v. Insurance Co., 167 Mo. App. 1. c. 130, 131, 151 S. W. 477; Freeman v. Barnum, 131 Cal. 386; Koehler v. Mfg. Co., 146 Cal. 335; Markley v. The People, 171 Ills. 260; Reynolds v. Mandel, 175 Ills. 615; Rowell v. Smith, 123 Wis. 510; Freeman on Judgments, sec. 253; 24 Am. and Eng. Ency. Law (2 Ed.), p. 780.]

In the case before us, though the two suits covered different periods of time, and were hence founded upon different causes of action, nevertheless if in the former suit the question whether defendant was released from liability to plaintiff in the premises, by reason of the previous agreement aforesaid, was submitted, and was adjudicated in defendant's favor, then the judgment resting thereupon must operate as an estoppel here, where the very same matter is drawn in controversy, and upon which liability hinges.

The doctrine of res adjudicata, or former adjudication, proceeds upon the theory, on the one hand, that it is to the interest of the State that there should be an end to litigation (Interest republicae ut sit finis litium), and, on the other hand, that the individual should not be twice vexed for the same cause (Nemo debet bis vexari pro eadem causa). Here the estoppel raised is rather in the nature of estoppel by verdict (see Markey v. People, supra, 1. c. 263; Reynolds v. Mandel, supra, 1. c. 618); but the general principle is the same, and so is the result, whatever it may be denominated.

Nor can it be doubted that where, as here, the record in the former suit does not show what questions