Harding v. Harding

This case, after decision by this court, whereby the judgment of the superior court of San Diego County granting plaintiff a divorce from defendant on the ground of desertion was affirmed (140 Cal. 690, [74 P. 284]), was carried to the United States supreme court by a writ of error. That court, upon the ground that this court in affirming such judgment had failed to give to a decree of the courts of the state of Illinois, rendered therein in an action for maintenance theretofore prosecuted by defendant against plaintiff, the due faith and credit to which it was entitled under the constitution of the United States, reversed the judgment of this court, and remanded the cause to this court "for further proceedings not inconsistent" with the opinion filed by said supreme court. (198 U.S. 317, [25 Sup. Ct. 679].) Upon the coming down of the remittitur of the United States supreme court, a motion was made herein by defendant that "the remittitur in said action issue forthwith to the superior court in and for the county of San Diego, state of California." This motion was met by a counter motion on the part of plaintiff to proceed to hear and determine such matters involved in the appeal as have not been decided by the United States supreme court, and to take such further proceedings in accordance with the mandate of said court as are necessary for the proper disposition of the appeal of this court.

These motions have been submitted together.

It is apparent that under the judgment of the United States supreme court the appeal in this cause is now pending in this court, for such disposition as this court may deem proper, *Page 399 provided always that such disposition must not be inconsistent with the opinion filed by the federal court. The reversal of the judgment of this court was not a reversal of the judgment of the superior court. To effect such a reversal there must, under the circumstances here existing, be a judgment of this court reversing such judgment. Whether such a judgment of reversal must follow the action of the United States supreme court depends upon the answer to the question as to whether any other course would be inconsistent with the opinion of that court. That opinion admittedly finally established the fact that the final decree of the Illinois court, pleaded and established by evidence in this action, constituted a full and complete defense to the sole cause of action for divorce asserted by the plaintiff herein. Plaintiff, however, urged on the original hearing of this appeal that, if such Illinois judgment had this effect, the defendant had, by defending on the merits, waived the benefits of the estoppel arising on such decree. This contention was not noticed by this court in its former decision; the court putting its decision on the ground that the Illinois judgment could not have the effect attributed to it by defendant, even if the benefits of the estoppel arising on such decree had not been waived. It is now contended by plaintiff that this question of waiver has not been foreclosed by the decision of the United States supreme court, and that this court may and should consider it, and if it finds upon the record that defendant has waived her rights under the Illinois judgment, it should affirm the judgment of the superior court. No other reason is suggested by plaintiff why the decision of the United States supreme court does not require a reversal of the judgment of the superior court.