Jordan v. Jordan

FOX, J. This is an appeal from an order dismissing an order to show cause re support pendente lite, attorney’s fees and court costs, and to restrain defendant from (1) annoying plaintiff, or (2) encumbering or disposing of community property.

In a prior suit each party had sought a divorce on the grounds of cruelty. That case was tried in February, 1954. Judgment was entered therein on March 8, 1954, denying a decree to both parties.

This action is for separate maintenance. It was filed on March 25, 1954. It is based on wilful desertion which is alleged to have occurred on March 13, 1953, and to have continued to date.

When the order to show cause was called for hearing defendant moved to dismiss on the ground that the matters involved were res judicata by reason of the judgment in the prior action. The motion was granted, hence this appeal. The court was, however, in error.

The doctrine of res judicata has a double aspect. “A former judgment operates as a bar against a second action upon the same cause, but in a later action upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.” (Emphasis added:) (Todhunter v. Smith, 219 Cal. 690, 695 [28 P.2d 916].) This concept of the dual nature of res judicata is amplified in Cromwell v. County of Sacramento, 94 U.S. 351, 352-353 [24 L.Ed. 195]. It is there stated that the doctrine comprehends “a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the first claim or demand, and its effect as au estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the [311]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 such matters is the judgment conclusive in another action. ’ ’