The defendant, in addition to denying the allegations of desertion alleged in the complaint, undertook to plead, as an affirmative defense, former adjudication. It is strenuously argued that no such defense was pleaded by the defendant: "First, because the so-called affirmative plea does not plead certain essential facts, and, secondly, because the plea does not show that the same cause of action was involved in the Ohio suit, as is involved in this one, in that, as said, the cause of action in the Ohio suit brought by the plaintiff was founded on "extreme cruelty" and "gross neglect of duty," whereas plaintiff's present suit is founded on "willful desertion."
The affirmative defense shows: (1) That the plaintiff in July, 1926, commenced a suit in the court of common pleas in and for Cuyahoga County, Ohio, to obtain a divorce from the defendant; (2) that said court was at the time of the institution of said suit a court of general jurisdiction in said state, having a clerk and a seal, with jurisdiction in causes for divorce; (3) that the plaintiff *Page 169 alleged as his cause of action in said suit facts identical with those alleged in the complaint in the instant suit; (4) that the defendant was served with process in said suit on September 23, 1926; (5) that the defendant appeared therein and filed her answer and cross-petition, wherein she denied each and every allegation contained in said petition of plaintiff charging her with marital offenses; (6) that thereafter said cause came on regularly for trial on November 5, 1927, and that thereafter and on December 15, 1927, the said court rendered judgment against plaintiff and in favor of the defendant, wherein it was determined that each and every of the allegations of the plaintiff's petition charging the defendant with marital delinquencies were untrue; (7) that said decree is a final adjudication and determination of said suit.
1. We think the answer and cross-complaint of defendant pleaded all that is necessary to constitute the plea of res adjudicata.
2. Respondent seems to take the position that because of certain matter contained in the prayer of defendant's answer the affirmative defense should not be considered as sufficient. We have often held that the prayer can in no way affect the sufficiency of the matter pleaded; furthermore, the matter goes to the defense on the merits, which is proper. Kelly v. Kelly,118 Va. 376, 87 S.E. 567.
3. The writer is unable to agree with the contention of respondent that a different "cause of action" is involved in the instant case from that adjudicated in the Ohio court, merely because the suit in the Ohio court was based on "extreme cruelty" and "gross neglect of duty," whereas this suit is founded on "willful desertion."
4, 5. The true test of the identity of "causes of action," as that term is used in connection with the plea of former adjudication, is the identity of the facts essential to their maintenance. The identity of the causes of action may appear from evidence in the two cases as well as from the pleadings. *Page 170 6. The authorities agree that when the same evidence supports both the present and the former cause of action, the two causes of action are identical. This view was expressed in the early English case of Kitchen v. Campbell (1772), 3 Wils. 304, the court saying: "You shall not bring the same cause of action twice to a final determination; nemo debet bis vexari, upon this we found our judgment: and what is meant by the same cause of action is when the same evidence will support both actions, although the actions may happen to be grounded on different writs; this is the test to know whether a final determination in a former action is a bar or not to a subsequent action; and it runs through all the cases in the books, both in real and personal actions."
A long list of cases is cited in support of this view in 34 C.J. p. 805, note 14. See, also, 15 Stand. Ency. Proc. p. 504.
7. It is a well-established rule that one cannot by varying the form of an action escape the operation of the principle that one and the same cause of action shall not be twice adjudicated upon the merits between the same parties or their privies. 2 Black on Judgments, sec. 729; 34 C.J. 881, sec. 1289.
The judgment and order are reversed.