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Argument for Plaintiff in Error.

215 U.S.

Particularly when the highest court of a State has decided against the effect which it was claimed proceedings in another State had by the law and usage of that State. Green v. Van Buskirk, 7 Wall. 145. See also Andrews v. Andrews, 188 U. S. 28; Crapo v. Kelly, 16 Wall. 621; Gt. West. Tel. Co. v. Purdy, 162 U. S. 335; Huntington v. Attrill, 146 U. S. 684; Harding v. Harding, 198 U. S. 325.

That in the present case the New York court has given too great effect to the Massachusetts proceedings, instead of too little, does not render its decision any the less reviewable by this court. Board of Pub. Works v. Columbia College, 17 Wall. 521, 529; Wood v. Watkinson, 17 Connecticut, 500, 505; Suydam v. Barber et al., 18 N. Y. 468, 472; Warrington v. Ball, 90 Fed. Rep. 464.

The state court erred in determining that the effect of the judicial proceedings in the probate court of Massachusetts was to render res judicata the issue raised by the complainant in this case.

The issue in this case is one which the probate court of Massachusetts did not and could not pass upon by actual decree, or affect by the legislative part of that decree. See Statutes of Massachusetts, chap. 153, § 33.

The issue in this case was not rendered res judicata by the judicial proceedings in Massachusetts.

It was not a fact which was, or could have been, litigated or decided in Massachusetts. See Kerr v. Kerr, 41 N. Y. 272.

The issue of this case was not a matter necessary to be determined by the Massachusetts probate court in the action taken by it.

The petition was simply dismissed. The ground for dismissal may have been any one of the grounds set up. There is nothing in the record to show that the Massachusetts court did not reach its result on some ground other than that which, it is contended, renders that result res judicata.

It cannot therefore be held, upon the face of the record, that there was identity of issues and resulting res judicata. Umlauf

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Argument for Plaintiff in Error.

v. Umlauf, 117 Illinois, 584; and see Harding v. Harding, 198 U. S. 337, 338.

It is clearly the law of Massachusetts, of New York, and the general law that, when a general result may have been reached by the determination of any undeterminate one of several facts, no particular fact is conclusively determined. Stannard v. Hubbell, 123 N. Y. 520; House v. Lockwood, 137 N. Y. 259; Stokes v. Foote, 172 N. Y. 327, 342; Burlen v. Shannon, 99 Massachusetts, 200; Lea v. Lea, 99 Massachusetts, 493; Foye v. Patch, 132 Massachusetts, 105, 111; Stone v. Addy, 168 Massachusetts, 26.

The issue of this case was not in fact a matter determined by the Massachusetts probate court.

The burden of proof was upon the husband, for it is the defendant who sets up the estoppel. Vaughn v. O'Brien, 57 Barb. 491, 495; Foye v. Patch, 132 Massachusetts, 105, 111; Cromwell v. Sack, 94 U. S. 351.

The issue in this case was not rendered res judicata because the alleged decree in Massachusetts did not import a decree on the merits.

The entry in the Massachusetts probate court, "Petition Dismissed" does not necessarily import a decree on the merits. And a consideration of the extrinsic evidence shows that there was a voluntary dismissal on the part of the wife at a time when she had a perfect right to dismiss her petition, which dismissal was acquiesced in by the husband and permitted by the court. The mere fact that the court did not see fit to grant her request that the decree should contain the customary technical words "without prejudice" is not conclusive upon her rights. Lanphier v. Desmond, 187 Illinois, 382; Haldeman v. United States, 91 U. S. 584.

And, since the decree purported only to deny to the wife affirmative relief, it did not bar a new application on her part for separate maintenance. Buckman v. Phelps, 6 Massachusetts, 448; Pettee v. Wilmarth, 5 Allen, 144.

For the Court of Appeals to hold the contrary was to deny

Argument for Defendant in Error.

215 U.S.

to the Massachusetts decree the effect which the wife claimed it had by law and usage in Massachusetts.

The issue in the present case arises on a different state of facts from the facts upon which the Massachusetts proceedings were predicated.

Mr. George Zabriskie for defendant in error:

In a suit of this character it is necessary in New York, as well as in the Federal courts, and elsewhere to allege and prove two distinct things: first, that the party complaining had a good defense on the merits to the claim upon which the judgment impeached was rendered; and second, that he was prevented from availing himself of that defense by the fraud of the other party. 2 Story, Equity, § 885a; Blank v. Blank, 107 N. Y. 91; Whittlesey v. Delaney, 73 N. Y. 571; Kimberly v. Arms, 40 Fed. Rep. 548; White v. Crow, 110 U. S. 183; Ableman v. Roth, 12 Wisconsin, 81; Dobbs v. St. Joseph Fire Ins. Co., 72 Missouri, 189; Williams v. Nolan, 58 Texas, 708.

The judgment of the Court of Appeals proceeded upon two grounds, of which at least one presents no Federal question.

The judgment of the Court of Appeals rests quite as much upon their determination of the issue of fraud, which involves no Federal question.

In such a case this court will not assume jurisdiction. Allen v. Arguimbau, 198 U. S. 149; Dibble v. Bellingham Bay Land Co., 163 U. S. 63; Johnson v. Risk, 137 U. S. 300; Klinger v. Missouri, 13 Wall. 257.

No Federal question is involved.

A right, privilege or immunity claimed under the Constitution must, under clause 3 of § 709 of the Revised Statutes of the United States, be claimed in the court below by the party seeking the advantage of it. Johnson v. N. Y. Life Ins. Co., 187 U. S. 491, 495; Eastern Building & Loan Assn. v. Williamson, 189 U. S. 122; Glenn v. Garth, 147 U. S. 360; Lloyd v. Matthews, 155 U. S. 222.

Where the plaintiff in error claims merely that the state

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Argument for Defendant in Error.

court erroneously construed the judgment of a court of another State, without denying that the state court gave to the judgment the effect which such construction warrants, there is no question of faith and credit involved which this court has jurisdiction to review. Allen v. Alleghany Company, 192 U. S. 458; Finney v. Guy, 189 U. S. 335; Johnson v. N. Y. Life Ins. Co., 187 U. S. 491; Banholzer v. N. Y. Life Ins. Co., 178 U. S. 402; Lloyd v. Matthews, 155 U. S. 222; Glenn v. Garth, 147 U. S. 360.

If upon any ground this court have jurisdiction, the judgment of the state court upon the plea of res judicata is right.

A final decree of a court of competent jurisdiction, upon the merits of the cause, is conclusive between the parties upon the material matters thereby necessarily determined. Embury v. Connor, 3 N. Y. 511, 552; Dobson v. Pearce, 12 N. Y. 156; Prey v. Hegeman, 98 N. Y. 351; Griffin v. Long Island R. R. Co., 102 N. Y. 449.

Such being the ordinary rule of law there is no evidence in the record to indicate that in Massachusetts the decree of the probate court would be accorded any other or different faith or credit.

In ascertaining what credit is given to judicial proceedings in the State where they took place, this court is limited to the evidence on that subject before the court whose judgment is under review. Tilt v. Kelsey, 207 U. S. 43, 57.

The conclusiveness of the decree is not impaired by the fact that the cause of action in the suit in which the judgment was rendered is different from the cause of action in the suit at bar. Doty v. Brown, 4 N. Y. 71; Lythgoe v. Lythgoe, 75 Hun, 147; S. C., 145 N. Y. 641.

In such instances the judgment is conclusive as to those matters in issue upon the determination of which the finding or verdict was actually rendered. Cromwell v. County of Sac, 94 U.S. 351, 352, 353; Southern Pacific R. R. Co. v. United States, 168 U. S. 1, 48, 49; Bell v. Merrifield, 109 N. Y. 202, 211.

The form of the proceeding does not effect the conclusive

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ness of the decree. The efficacy of the judicial determination attaches no less to summary, special or statutory proceedings, than to actions. Culross v. Gibbons, 130 N. Y. 447; Reich v. Cochran, 151 N. Y. 122; Smith v. Zalinski, 94 N. Y. 519; Matter of Livingston, 34 N. Y. 555.

The sufficiency of the proof upon which the court acted is not open to consideration where the judgment is pleaded as a bar or is relied on as evidence; otherwise the judgment would not be conclusive, and there could be no such thing as res judicata. Crescent Live Stock Co. v. Butchers' Union, 120 U. S. 141, 159; Deposit Bank v. Frankfort, 191 U. S. 449, 510; Grignon's Lessee v. Astor, 2 How. 319, 339; Comstock v. Crawford, 3 Wall. 396, 406.

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

We have no concern about the disposition made by the state court of questions of mere local law, and have only to inquire whether, as required by the Constitution of the United States, it gave full faith and credit to the proceedings had in the Probate Court in Massachusetts. Const., Art. IV, § 1. If it did, the judgment must be affirmed; otherwise, reversed. That the proceedings in the latter court were judicial in their nature, and that the New York court intended to give them full faith and credit, cannot be doubted. The Probate Court is a court of record, established by the General Court of Massachusetts under the authority of the constitution of that Commonwealth. Const. Mass. 1822; Pub. Stat. Mass. 1882, p. 871, c. 156. It has jurisdiction when a wife for justifiable cause is actually living apart from her husband to make such order as it deems expedient concerning her support. Ibid. And when it has jurisdiction of the parties and subjectmatter its decree, until reversed or modified, is as conclusive in Massachusetts as the judgments of other courts there. Watts v. Watts, 160 Massachusetts, 464; Langhton v. Atkins, 1 Pick. 535; Dublin v. Chabourn, 16 Massachusetts, 433.

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