
    Metzger v. Metzger.
    (Decided April 23, 1929.)
    
      Mr. Irwin F. Snyder, for plaintiff in error.
    
      Mr. G. A. Leist and Mr. Barton Walters, for defendant in error.
   Mauck, J.

Leota Metzger on-April 8, 1925, filed a petition in the court of common pleas of Pickaway county against her husband, Joseph Metzger, praying for temporary and permanent alimony. Service was had by publication. Temporary alimony was allowed October 31, 1925. The case was pending until August 14, 1926, when the defendant filed an answer. This answer contained two defenses. The first defense was a denial. A demurrer was filed to the second defense, and this demurrer was sustained. Later the case was heard upon its merits and a decree entered for the plaintiff. The soundness of this decree is now challenged by the petition in error of the defendant, who relies upon the sufficiency of the second defense pleaded in his answer, to which the demurrer was sustained over his objection.

The substance of the second defense was that on November 13, 1925, the defendant commenced an action in a district court of the state of Nevada for divorce; that his wife, Leota Metzger, was subjected to constructive service, and, later, on December 28, 1925, entered her appearance in the Nevada court; that thereafter on January 9, 1926, the divorce case came on to be heard in Nevada, and was heard and a divorce granted to Joseph Metzger, the plaintiff in that case. It is claimed that this decree of divorce, by reason of the personal appearance therein of the wife Leota Metzger, estopped her from further prosecuting her cause for alimony in the courts of this state.

In Gilbert v. Gilbert, 83 Ohio St., 265, 94 N. E., 421, 35 L. R. A. (N. S.), 521, it was decided that a wife who had obtained a decree of alimony in this state, and who subsequently entered her appearance in a proceeding brought by her husband against her for divorce in another state, was bound by a personal decree rendered against her in the sister ‘state, if,, after entering her appearance in the courts of that state, she asked for and obtained a decree for permanent alimony. That case differs from this in the fact that in the Gilbert case the issue of alimony was tried out in the sister state in which Mrs. Gilbert entered her appearance. The claim in the case at bar by the plaintiff in error is not that Mrs. Metzger sought an allowance of permanent alimony in the Nevada court, but that she might have done so as an incident to her resistance óf her husband’s petition for divorce in that state, and the broad claim is made by the plaintiff in error that the defendant in error was bound by the Nevada decree, not only as to everything litigated in the Nevada case, but as to everything that might have been litigated. This statement of the law is too broad. Divorce and alimony are separable causes of action, Woods v. Waddle, 44 Ohio St., 449, 8 N. E., 297, and the common pleas court of Pickaway county had jurisdiction to entertain the action for alimony at the time the same was filed. The husband brought his action in the Nevada court some seven months after the courts of Pickaway county had acquired jurisdiction in the alimony case, and no attempt was made by either party in the Nevada case to determine the property rights of the parties. If the abandoned wife in Ohio could not be permitted to appear in the Nevada court and repel unjust accusations made against her without thereby foregoing her right to prosecute her- alimony suit in the Ohio court that had.already acquired jurisdiction thereof, a club of intimidation would be placed in tbe hands of the fugitive husband that would enable him to accomplish a fraud upon the courts of the state to which he had fled. No rule so unfortunate as this has yet been established.

It has been determined that a fact once litigated is forever settled by the judgment in the case. Hixson v. Ogg, 53 Ohio St., 361, 42 N. E., 32. It has also been authoritatively determined that, when a party has been sued, he must set up all the defenses he has to that cause of action, and that, upon his failure so to do, he is barred in a subsequent suit from further setting up those defensive facts of which he might have availed himself in the earlier litigation. See Rothman v. Engel, 97 Ohio St., 77, 119 N. E., 250. In both the syllabus and opinion in that case the Supreme Court has been careful to emphasize that this rule binding parties to what might be litigated in a case runs only to facts which are strictly defensive, and not to other facts.

The answer in this case to which a demurrer was sustained does not set forth the recitations of the pleadings in the Nevada case, and the answer is defective for that reason. It is not claimed, however, even in argument, that there was litigated in the Nevada case the one question upon which the plaintiff’s right to alimony in the Ohio court depended, and that was the question as to whether or not the husband had been guilty prior to April 28, 1925, of any gross neglect of duty entitling the plaintiff to an award of alimony. If upon the date last mentioned the husband had been guilty of a gross neglect of duty in failing to provide for his wife, she was not estopped by the Nevada court’s decree unless that question was tried in the Nevada case. In the fifth edition of Freeman on Judgments, Sections 671 and 675, it is said that the general expression often found, to the effect that a judgment is conclusive of every matter which the parties might have litigated, is misleading; that what is really meant by this expression is that a judgment is conclusive upon the issues made or tendered, and, so far as those issues are concerned, of everything which might have been urged for or against them. The author adds:

“But the plaintiff is under no obligation to tender issues not necessary to support his cause of action, nor is the defendant required to meet issues not tendered by the plaintiff; and if, after the defendant has fully met all the issues tendered by plaintiff there is any matter not admissible in evidence under the pleadings it is generally not concluded by the judgment, though the parties might by different pleadings have made it an issue in the action and had it determined. * * *
“Where one has the option to litigate a particular matter in an action, the fact that he might have but did not litigate it does not make the judgment a bar to his right to subsequently do so.”

Our conclusion is that the answer in this case did no more than plead that Mrs. Metzger was a party to a divorce case in Nevada. It does not show that there was tried out in that case the question of whether or not her husband had been guilty of gross neglect of duty to her prior to April 28, 1925. It does not even show that by the laws of that state such a question could have been tried out. The second defense of the answer was therefore insufficient, and the demurrer thereto was properly sustained. We find no other assignment of error requiring a discussion. The judgment entered was authorized by the evidence.

Judgment affirmed.

Houck and Lemert, JJ., concur.

Judges Houck and Lemert of the Fifth Appellate District sitting in place of Judges Middleton and Blosser of the Fourth Appellate District.  