DISSENTING OPINION. With the statement that where there has been an adjudication and a final determination by a competent tribunal the matter is considered forever at rest, I have no quarrel, but the dissension arises as to what was adjudicated in the first divorce suit. In the first suit filed by the husband he alleged that his wife had abandoned him and that because she had abandoned him he was entitled to a decree of divorce. To this complaint the wife filed an answer of general denial.
To determine what the court adjudicated it is necessary to first decide what the issue for his determination was, as presented by the pleadings.
"The word `issue' as used in law, is technical. It is thepoint in dispute between the parties on which they put their cause to trial." (Our italics.) Wolcott v. Wigton et al. (1855), 7 Ind. 44, 48.
It is then necessary for us to determine what was the "point in dispute" between husband and wife here. The husband by the allegations of his complaint says *Page 437 he is entitled to a divorce because of cruel and inhuman treatment. The wife by her general denial says "no you are not entitled to a divorce because I have not been guilty of cruel and inhuman treatment toward you." "`The matter in issue has been defined by this court adopting the language of a Federal Court, quoting a New Hampshire court "to be the matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleading."'" Bowen v. W.O. Eaton Co. (1910), 46 Ind. App. 65, 75, 89 N.E. 961. The issue is defined by and confined to the pleadings. Palmer v. Humiston (1913),87 Ohio St. 401, 101 N.E. 283, 45 L.R.A. (N.S.) 640.
The answer of general denial puts the plaintiff "upon proof of all the material allegations of his complaint." City ofLafayette v. Wortman (1886), 107 Ind. 404, 409, 8 N.E. 277. Also The Indianapolis, Decatur W.R. Co. v. Center Township (1895), 143 Ind. 63, 40 N.E. 134; P.C.C. St. L.R. Co. v.Fish (1902), 158 Ind. 525, 530, 63 N.E. 454. The burden is then upon the plaintiff to establish facts warranting his right to recover. Hubble v. Berry et al. (1913), 180 Ind. 513, 103 N.E. 328.
"The prime object of all litigation is to establish a right." (Our italics.) Tyler v. Judges, etc. (1900), 179 U.S. 405, 406, 21 Sup. Ct. R. 206. Where there is a primary right and that right has been invaded it gives to the one having the right the election of proceeding to enforce that right if in law or equity or by special statute there is a remedy provided by which it may be pursued to preserve to him the relief to which he is entitled. Here is where confusion first arises because courts have confounded causes of action with remedies. They are entirely different, separate, and distinct in many respects and are different in principle and governed by other rules. *Page 438
The "cause of action" should be distinguished not only from the "remedy" but also from the "relief" sought which is not part of the cause of action, 1 R.C.L. Actions, and cases cited.
"A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show." BaltimoreS.S. Co. v. Phillips (1926), 274 U.S. 316, 321, 47 S.Ct. R. 600, 71 L.Ed. 1069. The court in this case, quoting from the case of Chobanian v. Washburn Wire Co. (1911), 33 R.I. 289, 80 A. 294, Ann. Cas. 1913d 730, said (p. 302): "The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. `The thing, therefore, which in contemplation of law as its cause, becomes a ground for action, is not the group offacts alleged in the declaration, bill, or indictment, but theresult in a legal wrong, the existence of which, if true, theyconclusively evince.'"
The legislature of Indiana has said that one may expect to have a marriage exist until it is interrupted by one of eight enumerated grounds. When facts exist which establish that one of these grounds is prevalent the injured party may repair to the court and file therein, in the manner provided by statute, as those statutes have been interpreted by the courts, a complaint. Where the husband believing that his primary right, namely, to have the marriage proceed uninterruptedly, had been violated by the abandonment by the wife then pursued the remedy given to him by the legislature, namely, filed his complaint for divorce because of abandonment in the proper court, thereby in effect saying that because this right was violated and having pursued the remedy given me by the statute that if I establish the facts necessary to prove to the court that I have been abandoned that I am then entitled to the *Page 439 relief which the statute says is to be mine — a decree for divorce.
Plaintiff must proceed upon some definite theory and the evidence introduced must support that theory. Wagner v.Winter (1890), 122 Ind. 57, 23 N.E. 709. The trial court should limit the inquiry and proof to the theory of the issue.Pittsburgh, etc., R. Co. v. James (1917), 64 Ind. App. 456, 114 N.E. 833.
The wife by filing her plea in bar as to cruel and inhuman treatment admitted that there existed in favor of the husband facts which would entitle him to a divorce but contended that it should now bar him because it had been previously determined.Crum v. Yundt (1895), 12 Ind. App. 308, 40 N.E. 79. Since there was no demurrer to the first complaint any objections thereto are waived. Indianapolis Street Ry. Co. v. Kane (1907), 169 Ind. 25, 80 N.E. 841, 81 N.E. 721.
The test of the identity of the cause of action is whether or not the same evidence would sustain both. If it would they are identical, otherwise they are not. 15 R.C.L. Judgments § 329. Freeman on Judgments, Vol. 2, § 687.
"`It is undoubtedly a settled question that a party seeking to enforce a claim legal or equitable must present to the court, either by the pleadings or proofs, all the grounds upon which he expects a judgment in his favor. He is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There would be no end to litigation if such practice were permissible.'
"This statement, however, is qualified by the following, . . .:
"`But this principle does not require distinct causes ofaction — that is to say, distinct matters — each of *Page 440 which would authorize by itself independent relief, to bepresented in a single suit, though they existed at the same timeand might be considered together.'" United States v. TheHaytian Republic (1894), 154 U.S. 118, 125, 14 S.Ct. 992.
This precise question as applied to divorce cases has been determined to be that the adjudication of one ground or right as given by statute is not a bar to other grounds for divorce by Florida, Massachusetts and New Hampshire. The Supreme Court of Florida applied the same test as we have in the instant case as to the identity of causes of action and arrived at the result in the following manner: "Where the second suit is upon the same cause of action and between the same parties as the first, the final judgment in the first suit upon the merits is conclusive in the second suit as to every question that was presented or might have been presented and determined in the first suit. When the second suit is upon a different cause of action, but between the same parties as the first, the judgment in the first suit operates as an estoppel in the second suit only as to every point and question that was actually litigated and determined in the first suit, and the first judgment is not conclusive as to other matters that might have been, but were not, litigated or decided. The test of the identity of causes of action, for the purpose of determining the question of res judicata, is the identity of the facts essential to the maintenance of the actions. It is of the essence of estoppel by judgment that it be made certain that the precise facts were determined by the former judgment. If there is any uncertainty as to the matter formerly adjudicated, the burden of showing it with sufficient certainty by the record or extrinsically is upon the party who claims the benefit of the former judgment. Fulton v. Gesterding, 47 Fla. 150, 36 So. 56; Harrison v. Remington Paper Co., 3 L.R.A. (N.S.) 954, *Page 441 140 Fed. 385, 5 A. E. Ann. Cas. 314; Rowell v. Smith,123 Wis. 510, 102 N.W. 1, 3 A. E. Ann. Cas. 773; Draper v.Medlock, 122 Ga. 234, 50 S.E. 113, 2 A. E. Ann. Cas. 650;Russell v. Place, 94 U.S. 606; De Sollar v. Hanscome,158 U.S. 216, text 221; Thompson v. N.E. Bushnell Co., 80 Fed. 332; Rogers v. Higgins, 57 Ill. 244." Prall v. Prall (1909), 58 Fla. 496, 505, 50 So. 867.
To constitute an estoppel by former judgment the precise point which is to create the estoppel must have been put in issue and denied. Smith v. Sherwood (1822), 4 Conn. 276; Abbe v.Goodwin (1829), 7 Conn. 377; Citizens Loan Trust Co. ofWashington, Ind. et al. v. Sanders et al. (1934),99 Ind. App. 77, 187 N.E. 396; Faught et al. v. Faught (1884),98 Ind. 470; Bereolos v. Roth (1924), 195 Ind. 425, 145 N.E. 545;Knotts v. Clark Construction Co. (1921), 191 Ind. 354, 131 N.E. 921, 132 N.E. 678.
A judgment is conclusive by way of estoppel only as to those facts which were necessarily within the issues presented and without proof of which the judgment would not have been rendered. Facts in controversy bearing such relation to the judgment rendered are the only ones which can in any legal sense be said to have been litigated in any judicial proceeding. Eastman v.Symonds (1871), 108 Mass. 567, 569. If a material issue which is not merely collaterally in question or incidentally cognizable is contested in a court of competent jurisdiction and determined by a final judgment on the merits it will be at rest as between the adverse parties and their respective privies, in all other judicial proceedings. Van Fleet on Former Adjudication, Vol. 1, page 512. The decree introduced in the trial being between the same parties as those in the present action is binding and conclusive upon them in this suit in regard to all matters shown to have been put in issue or to have been necessarily involved in the former suit *Page 442 and actually tried and determined. In regard to matters not then in controversy and not heard and determined although it is conclusive so far as the final disposition of that cause is concerned it is not conclusive to prevent a determination of them according to the truth if they are subsequently controverted in a different case. The judgment is conclusive as evidence and may be pleaded as an estoppel only as to those matters which were put in issue and determined. Watts v. Watts (1894), 160 Mass. 464, 36 N.E. 479. Issues which are not material to the controversy although determined do not become res adjudicata. Van Fleet,supra, page 543.
Although a decree in expressed terms professes to affirm a particular fact yet if that fact was not material, the controversy did not turn upon it, and the decree will not conclude the parties in reference to it. People v. Johnson (1868), 38 N.Y. 63.
The plea of res judicata is not available to parties in an action unless the judgment set up was rendered upon issues between them. There must have been a controversy between the parties, the questions in which were or might, within the issues formed, have been competently adjudicated. Beveridge v. NewYork E.R. Co. (1889), 42 Hun. (N.Y.) 656, 19 N.E. 489.
The statement has been made many times, by courts, that adjudication is final and conclusive not only as to the matter actually determined but as to every other matter which the parties might have litigated and had decided incident to or essentially connected with the subject matter and litigation and every matter coming within the legitimate purview of the original action, both in respect to matters of claim or defenses. Such statement, when applied properly and held within certain definite and specific limits is substantially correct, but in the last analysis that is no more than an attempt to condense the doctrine of res judicata into a single *Page 443 sentence and it omits many of the important qualifications and without specifically defining the words as used as to their particular meaning. After all is said and done all that can be meant by such an expression is that the judgment is conclusive upon the issues made and tendered and upon everything that might have been used in behalf of or against such particularissues. A plaintiff might have alleged the violation of other rights along with that alleged in his original complaint but in the absence of a specific allegation of a violation of these rights and in the absence of any pleading on behalf of the adverse party demanding a determination upon such issues they can not be said to have been adjudicated in such action and since they were not tendered or adjudicated they can not be said to be a bar to any subsequent action between the same parties.
"The first suit between the parties was for a divorce upon the statutory ground of `habitual indulgence by defendant in violent and ungovernable temper.' While the trial court granted the divorce upon the allegations and proofs, this court, on appeal, held the allegations of facts to be insufficient to state a cause of action, as the conclusions of law stated in the bill of complaint were not sustained by the fact alleged, and also held that the proofs were insufficient to warrant a decree of divorce. The bill was ordered to be dismissed. The decree in the former suit is, therefore, conclusive only as to the material facts alleged and shown therein. Prall v. Prall, 56 Fla. 521, 47 So. 916. See also McKinnon v. Johnson, 57 Fla. 120, 48 So. 910, and authorities there cited.
"This second suit between the same parties as plaintiff and as defendant is for a divorce upon the statutory grounds of `extreme cruelty by the defendant to complainant,' and of `wilful, obstinate, and continued desertion of the complainant by the defendant for one year.' *Page 444 It is consequently not for the same cause of action." Prall v.Prall (1909), 58 Fla. 496, 505, 50 So. 867.
The Supreme Court of New Hampshire in Rand v. Rand (1879),58 N.H. 536, determined that a judgment denying a decree on the ground of extreme cruelty was not a bar to a subsequent suit on the ground of abandonment. The court therein said (p. 536): "The refusal of a divorce in the former suit was not an adjudication of the cause alleged in this case, and the former judgment does not estop the plaintiff from using the evidence offered by her in support of the allegations in this case." See also Lea v. Lea (1868), 99 Mass. 493.
Conceding that it would be highly desirable if all of the grounds for divorce should be alleged in one action we are not at liberty to arrive at this result by judicial interpretation. The legislature has said by not providing otherwise that the grounds for divorce may be presented in separate suits and until they say specifically that all grounds for divorce must be presented in the same action they may be and should be tried separately. The great weight of authority and the better reasoned cases throughout the country where this question has been presented are in accord with my views here. See United States v. The HaytianRepublic, supra. This is purely a legislative matter. However advantageous it might be, so far as expediting litigation is concerned, courts do not have the inherent power to take away rights that have been established by legislatures and until our legislature has said that these various grounds for divorce must be combined in one action we should not attempt to invade the legislative field. It is, therefore, my opinion, in which my colleague, Wiecking, J., concurs, that the adjudication of the question of abandonment was not a bar to the second suit where the complaint alleged cruel and inhuman treatment. *Page 445