The supreme court of Arkansas has declared that in divorce and alimony cases, the chancery court of that state cannot exercise ordinary inherent chancery powers, and that it can only exercise the powers expressly conferred by

statute.

Ex parte Helmert, 103 Ark. 571, 147 S. W. 1143; Bowman v. Worthington, 24 Ark. 522.

Section 2684 of the Arkansas statutes is a specific statute, specifically providing and directing just what portion of the husband's property shall be allotted to the wife in case the divorce be granted to her, and against the husband. This statute, of its own force, vests in the wife, in case the divorce be granted to her and against the husband, a definite share of the husband's property.

Hix v. Sun Ins. Co. 94 Ark. 488, 140 Am. St. Rep. 138, 127 S. W. 737.

The full faith and credit provision does not extend the jurisdiction of the courts of one state to the property situated in another, but only makes the judgment rendered conclusive on the merits of the claim or subject-matter of the suit. It does not carry with it into another state the efficacy of a judgment upon property or persons, to be enforced by execution. To give it the force of a judgment in another state it must become a judgment there; and can only be executed in the latter as its laws permit.

Fall v. Eastin, 215 U. S. 11, 12, 54 L. ed. 70, 71, 23 L.R.A.(N.S.) 924, 30 Sup. Ct. Rep. 3, 17 Ann. Cas. 853; M'El moyle v. Cohen, 13 Pet. 312, 10 L. ed.

177.

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 judicata by reason of that action, and hence is left open for adjudication in this action.

Thomas v. Thomas. 27 Okla. 784, 35 L.R.A.(N.S.) 124, 109 Pac. 825, 113 Pac. 1058, Ann. Cas. 1912C, 713; Bowman v. Worthington, 24 Ark. 522.

If, upon the face of the record, anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence.

Russell v. Place, 94 U. S. 608, 24 ed. 215.

L.

Generally speaking, in order that

a

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; and where the record is uncertain, parol evidence is admissible to show what issues were determined in the former suit; and we think that while the authorities are conflicting, their greater weight is in favor of the view that the burden of proof is upon the party pleading the estoppel to establish the fact of the adjudication by extrinsic evidence, if necessary, and not upon the other party to show that an issue which might have been adjudicated was not.

Slater v. Skirving, 51 Neb. 113, 66 Am. St. Rep. 444, 70 N. W. 493.

In suits for alimony alone, the statute requiring residence of the plaintiff in the county in which the suit is brought in divorce cases does not apply, and a nonresident plaintiff may maintain a suit for alimony alone.

Hoon v. Hoon, 82 Neb. 689, 118 N. W. 563; Cochran V. Cochran, 42 Neb. 612, 60 N. W. 942; Earle v. Earle, 27 Neb. 277, 20 Am. St. Rep. 667, 43 N. W. 118.

A suit for alimony and maintenance may be maintained in the district courts of the state after divorce has been granted and the actual relation of husband and wife has ceased to exist.

Cochran v. Cochran, 42 Neb. 612, 60 N. W. 942; Rhoades v. Rhoades, 78 Neb. 497, 126 Am. St. Rep. 611, 111 N. W. 122; Cox v. Cox, 19 Ohio St. 512, 2 Am. Rep. 415; Woods v. Waddle, 44 Ohio St. 449, 8 N. E. 297; Van Orsdal v. Van Orsdal, 67 Iowa, 35, 24 N. W. 579; Rogers v. Rogers, 15 B. Mon. 375.

Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court:

A motion is made to dismiss on the ground, as contended, that the decision of the supreme court of Nebraska was based upon a construction of the statutes of Arkansas, and concluded therefrom that the district court of Arkansas "had no jurisdiction to take the Nebraska lands of this plaintiff in error into consideration in fixing the amount of allowance to this defendant in error, and as a matter of fact did not do so." That this conclusion was reached "by reason of the peculiar statute of Arkansas which governs and controls the courts of that state in fixing the allowance of alimony to a

wife, in all cases in which the divorce is granted on her petition" (italics counsel's), and the court "was limited and controlled by that statute." It is hence contended that the full faith and credit which the Constitution of the United States requires to be given to the judicial proceedings of another state was not denied to the Arkansas decree, but that the supreme court of Nebraska, considering the statutes of Arkansas, gave to the decree the value those statutes gave to it.

But this is the question in controversy. The decision of the supreme court of Nebraska is challenged for not according to the decree the credit it is entitled [525] to, and it is no answer to the challenge to say that the supreme court committed no error in responding to it, and that therefore there is no Federal question for review. Andrews v. Andrews, 188 U. S. 14, 47 L. ed. 366, 23 Sup. Ct. Rep. 237. The motion to dis

miss is denied.

The decision of the supreme court, affirming the subsequent judgment of the district court on the merits, was by a divided court and the opinion and dissenting opinion were well-reasoned and elaborate. The ultimate propositions decided were that the courts of Nebraska would entertain a suit for alimony out of real estate situated in that state after a decree for absolute divorce in another state, the latter state having no jurisdiction of the land, notwithstanding the decree awarding alimony, the decree not appearing to have been rendered by consent, or not having taken such land into account; and that, besides, the Arkansas court had no jurisdiction to render a money judgment for alimony.

The propositions were supported and opposed by able discussion, some of which was occupied in reconciling a conflict of decision in Nebraska, a later decision made to give way to an earlier one. We are not called upon to trace or consider the reasoning of the opinion further than to determine the correctness of its elements, and this determination can be made by reference to the divorce proceedings in Arkansas and the decree of the court rendered therein.

The case is not in broad compass and depends upon the application of the quite familiar principle that determines the estoppel of judgments, and the principle would seem to have special application to a judgment for divorce and alimony. They are usually concomitants in the same suit, some cases say must be,-or, rather, that as alimony is an incident of divorce, it must be awarded by the same decree

that grants the separation. And it is the practice to unite them, as alimony [526]. necessarily depends upon a variety of circumstances more adequately determined in the suit for divorce; not only the right to it, but the measure of it,all circumstances upon which it depends then naturally brought under the view and judgment of the court. Whether, however, the right to it should be litigated in the suit for divorce, or may be sought subsequently in another, the principle is applicable that what is once adjudged cannot be tried again. And this court has established a test of the thing adjudged and the extent of its estoppel. It is: If the second action is upon the same claim or demand as that in which the judgment pleaded was rendered, the judgment is an absolute bar not only of what was decided, but of what might have been decided. If the second action was upon a different claim or demand, then the judgment is an estoppel "only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered." Cromwell v. Sac County, 94 U. S. 351, 353, 24 L. ed. 195, 198; Virginia-Carolina Chemical Co. v. Kirven, 215 U. S. 252, 54 L. ed. 179, 30 Sup. Ct. Rep. 78; Troxell v. Delaware, L. & W. R. Co. 227 U. S. 434, 57 L. ed. 586, 33 Sup. Ct. Rep. 274; Radford v. Myers, 231 U. S. 725, 58 L. ed. 454, 34 Sup. Ct. Rep. 249; Hart Steel Co. v. Railroad Supply Co. 244 U. S. 294, 61 L. ed. 1148, 37 Sup. Ct. Rep. 506.

But how find the matters in issue or the points controverted upon the determination of which the judgment was rendered? The obvious answer would seem to be that for the issues we must go to the pleadings; for the response to them and their determination, to the judgment; and each may furnish a definition of the other. National Foundry & Pipe Works v. Oconto Water Supply Co. 183 U. S. 216, 234, 46 L. ed. 157, 169, 22 Sup. Ct. Rep. 111. If there be generality and uncertainty, to what extent there may be specification and limitation by evidence aliunde there is some conflict in the cases. But we are not called upon to review or reconcile them. Our rule is that an estoppel by judgment is "not only as to every matter which was [527] 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.' Cromwell v. Sac County, 94 U. S. 352, 24 L. ed. 197. Is the rule applicable to the instant case?

We have set forth the proceedings in divorce in which, we have seen, there were charges of cruelty, and counter charges. There was display of property, prayers for divorce, and a prayer in addition, on the part of defendant in error, that her husband, Bates, be required to restore a sum borrowed from her, "and that the court award her such alimony as the facts and law warrant, and all other proper and necessary relief."

Responding to the issues thus made and the relief thus prayed, the court adjudged plaintiff in error guilty of cruelty, granted defendant in error a divorce, and awarded her the sum of "$5,111 in full of alimony and all other items set forth in the cross bill."

There were then presented the issues of divorce and alimony; the first was made absolute, the second in a specified sum "in full," and the sum adjudged to her was made a lien on his property in the state (Arkansas). We may remark that she was awarded other property. It would seem, therefore, that there is no uncertainty upon the face of the record, and that it is clear as to the issues submitted and clear as to the decision upon them.

But it is answered that-(1) the court had no jurisdiction of the Nebraska lands, and (2) that, besides, it did not take them into account in its judgment.

(1) Counsel make too much of this point. It may be that the Arkansas court had no jurisdiction of the Nebraska lands so as to deal with them specifically, but it had jurisdiction over plaintiff in error, to require him to perform any order it might make. But even this power need not be urged. The court had jurisdiction of the controversy between the parties and all that [528] pertained to it, jurisdiction to determine the extent of the property resources of plaintiff in error and what part of them should be awarded to defendant in error. It was not limited to any particular sum if it had jurisdiction to render a money judgment at all.

But such jurisdiction does not exist, the supreme court of Nebraska decides and counsel urges. The argument to sustain this is that the Arkansas statute1 (Kirby's Dig. § 2684) provides that when a divorce is granted to the wife, the only

1"And where the divorce is granted to the wife, the court shall make an order that each party be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife so granted a divorce against the

power the court possesses is to restore to the parties respectively the property one may have obtained from the other during the marriage, and adjudge to the wife one third of her husband's personal property absolutely and one third of all the lands whereof he was seised of an estate of inheritance at any time during the marriage for her life, unless she shall have relinquished the same in legal forin. In other words, against a guilty husband the courts of Arkansas were without power to render a money judgment for alimony, but were confined to an allotment of his personal property and real estate in the proportions stated. But the court was confronted with the question of the relation of that section to § 2681 of the Digest, which provides that "when a decree shall be entered, the court shall 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 [529] be reasonable." In answer to the question, the court decided that the latter section is applicable only when a divorce is granted for the fault of the wife.

Plaintiff in error contests the conclusion and strong argument may be made against it to show that the sections are reconcilable and each applicable to particular conditions. And such was the view of the dissenting members of the court. However, we are not called upon for a definitive decision, on account of the view we entertain of proposition 2, and the reason which, we think, induced the court to render a money judgment.

(2) This proposition is based on the record, which, the supreme court said, "shows that the court [Arkansas court] did not in fact make any allowance on account of the Nebraska lands," and resort is had to parol testimony for the purpose of limiting the decree. But we cannot give the testimony such strength. It is conflicting. It consists of the impressions of opposing counsel and of the parties of the opinion of the court, orally delivered in direction for the decree.

The Bodie version is supported by the clerk of the court, whose recollection was that the court did not take into consideration "the land outside of Benton county." husband shall be entitled to one third of the husband's personal property absolutely, 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 Dig. § 2684.