On Petition for Rehearing
By the Court,
Coleman, J.:A lengthy petition for a rehearing has been filed in this case. We thought the views heretofore expressed so well established as to be preclusive of a petition for a rehearing. However, it may serve a good purpose to elaborate somewhat upon the main point originally presented.
1. At the outset we may state that, while counsel insist upon some of their original contentions, they now argue from a different view-point than formerly that the trial court was without jurisdiction to enter judgment on the pleadings. As to such matters, we need simply say that it is a well-established rule in this jurisdiction that they will not be considered when urged for the first time in a petition for a rehearing.
2. We come now to the assertion that our conclusion as to the application of the plea of res adjudicata is not *285well founded. To the answer filed in. this case, setting up the plea of res adjudicata, as we formerly pointed out-, a reply was filed, wherein it was admitted that the “same facts and allegations” of cruelty in the complaint in this suit as a ground for a divorce were contained in the answer in the separate maintenance suit in West Virginia, wherein the court entered a decree in favor of the plaintiff in that proceeding, and against the plaintiff (Dr. Vickers) in this suit. Hence it appears beyond question that the identical issue — cruelty-—-was involved in the West Virginia proceeding as is involved in this one, and growing out of the same state of facts. Why should this issue be retried in the Nevada courts? If it can be retried here, might it not be retried in as many of the forty-eight states of the Union as permit a divorce on the ground of cruelty ? Learned counsel have argued, more at length than with perspicuity, in an effort to show wherein we erred. In our former opinion we quoted from a recent decision of the Supreme Court of the United States, holding to the effect that a question of fact distinctly put in issue and determined by a court of competent jurisdiction as a ground of recovery or defense is conclusively settled by the final judgment or decree therein, so that it cannot be further litigated in a subsequent suit between the same parties or their privies, whether the second suit be for the same or a different cause of action. This seems to be a wholesome rule, enunciated by a distinguished tribunal, and in keeping with long-recognized and well-established principles.
While the doctrine of res adjudicata is an ancient one, and recognized by practically all systems of jurisprudence, the authorities of this country hark back to the Duchess of Kingston’s Case (11 State Trials, 261; Smith’s Leading Cases, 573) for' guidance. What seems to be recognized as the leading case in this country is that of Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195. While we do not think the opinion of Mr. Justice Field in that case needs any interpretation, if *286there be any doubt as to just what that learned justice meant, we need look only to his opinion in Russell v. Place, 94 U. S. 606, 24 L. Ed. 214, where he said:
“It is undoubtedly settled law that a judgment of a court of competent j urisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties.”
Some years later the same learned tribunal, speaking through Mr. Justice Harlan, Mr. Justice Field and all of the other justices concurring, in Southern Pacific. Co. v. United States, 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355, used this language:
“The general principle announced in numerous cases is that a right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies.”
Following up the decision mentioned was the one in State of Oklahoma v. Texas, from which we quoted in our former opinion. It would seem that there can be no doubt, from a consideration of all of these opinions, as to just what the Supreme Court of the United States meant to hold. It says as plainly as the English language can express it that an issue of fact directly determined by a court of competent jurisdiction cannot be again tried, where a proper plea is interposed, between the same parties or their privies. Such is the well-established rule. 23 Cyc. 1215.
3. Counsel frequently allude to the term “cause of action,” but nowhere endeavor to enlighten the court as to their understanding of it. We understand it to mean merely an averment of facts sufficient to justify a court in rendering a judgment. It is said in the petition:
“Now when the defendant pleads the West Virginia judgment as a bar, she pleads that this cause of action, to wit, divorce, was heard, tried, and determined, and we know it was not.”
*287The language quoted epitomizes all that is said upon the point. Yes; we know the question of divorce was in no way involved in the West Virginia proceeding; no one ever contended that it was. In that .suit Mrs. Vickers sought separate maintenance, on the ground that Dr. Vickers had abandoned her. He deferided on the ground of cruelty, averring in his answer numerous alleged facts going to constitute cruelty as a justification for his conduct. Cruelty was the issue upon which Dr. Vickers relied in that suit as a ground of defense. In a sense, there were two issues in the West Virginia suit — the alleged abandonment of Mrs. Vickers by Dr.Vickers and the alleged cruelty of Mrs. Vickers. If Dr. Vickers had succeeded in establishing the issue growing out of his charge of cruelty as a ground of defense, Mrs. Vickers could not have recovered, as there then could have been no abandonment. The contention of the petitioner, as set forth in the above quotation, is too flimsy to call forth serious consideration.
In this action for a divorce, instituted by Dr. Vickers, wherein he relies upon cruelty as a ground therefor, and pleads the identical facts, as he admits in his reply, to sustain the same as were adjudicated in the West Virginia suit, the judgment on the pleadings was properly entered.
We do not deem it necessary to supplement what was said in our former opinion upon the other points considered.
It is ordered that the petition for a rehearing be denied.