
    [No. 11562.
    Department One.
    September 15, 1914.]
    Zora E. Loeper, Appellant, v. William F. Loeper et al., Respondents.
      
    
    Husband and Wife — -Sepabate Maintenance — Grounds. To maintain an action for separate maintenance, it is necessary for plaintiff to show an abandonment without cause, or facts which in law constitute an abandonment, and that, having the ability so to do, the husband neglected or refused to support her.
    Divorce — Judgment—Res Judicata — Matters Concluded. A judgment in an action for separate maintenance is res judicata in a subsequent action for divorce on the grounds of nonsupport, cruelty, and abandonment, as to all matters occurring before its rendition, where the judgment dismissing the former action showed that defendant had the ability to support his wife, certain real estate being decreed to be his separate property, and necessarily determined that he had not abandoned the plaintiff, and that she was at fault in living apart from him; since all matters alleged in the divorce action were, or might have been, alleged and litigated in the former action.
    
      Judgment — Evidence—Res Judicata. It is competent to prove, in an action for divorce, that the court, upon a former trial of an action by the same plaintiff for separate maintenance, announced before the rendition of judgment, that the evidence clearly showed that plaintiff left her home without cause, the question of abandonment being in issue in the divorce case and the defendant pleading the former judgment as res judicata.
    
    Divorce — Judgment—Matters Concluded. Where the cause of action in a suit for separate maintenance is the same as that in a subsequent action for divorce, the conclusive effect of a judgment on the merits in the former action is not affected by the joinder of the husband’s daughter as a party defendant, on the alleged ground that he had conveyed his property to the daughter in order to defraud the plaintiff.
    Appeal from a judgment of the superior court for Spokane county, Miller, J., entered March 6, 1913, dismissing an action for divorce, after a trial to the court.
    Affirmed.
    
      John M. Gleeson, for appellant.
    
      Danson, Williams <§• Danson {Geo. D. Lamtz, of counsel), for respondents.
    
      
       Reported in 142 Pac. 1138.
    
   Gose, J.

— On the 27th day of March, 1908, the plaintiff commenced a suit against her husband, the defendant W. F. Loeper, for separate maintenance. She alleged that “without fault on her part” she was compelled to leave the home of the defendant on the 15th day of November, 1906, and that she thereafter maintained herself. She alleged further that she left her home and lived separate and apart from her husband (a) because of his cruelty and the cruelty of his children by a former wife, who lived in the family domicile; (b) because he continued to harass and slander her thereafter, telling her employer that she was a woman of bad character and that she frequented immoral places. The defendant traversed the charges of cruelty, and alleged that the plaintiff, on the date alleged in her complaint, “abandoned and deserted the defendant without cause.” After the cause had been tried, a judgment was entered on the 9th day of April, 1908, which, among other things, recites:

“That plaintiff Zora Loeper is entitled to none of the relief as demanded in her amended complaint herein, and that said action is hereby dismissed.”

On the 5th day of July, 1912, she commenced this action for a divorce from her husband, on three grounds, (1) failure to support; (2) cruelty both before and after the separation in November, 1906, and (3) abandonment. She made Emma Loeper, a daughter of the defendant, a party, alleging that the husband had conveyed his property to her for the purpose of defrauding the plaintiff. The defendant husband traversed the charges of wrongdoing on his part, and pleaded the former judgment as a bar to the action. He also alleged that all the matters and things alleged in the complaint were or could have been alleged, and were or could have been litigated, in the former action. It seems to be conceded that the plaintiff has lived apart from her husband since the 15th day of November, 1906. The court held that the judgment in the former suit was res judicata as to all matters occurring before its rendition, and directed counsel to submit their testimony as to matters occurring subsequently to the rendition of the judgment. This they declined to do, and the action was dismissed. The appeal followed.

The appeal presents a single question, viz., is the judgment in the suit for separate maintenance res judicata as to all matters alleged in the complaint occurring prior to its rendition. In Schonborn v. Schonborn, 27 Wash. 421, 67 Pac. 987, an action for separate maintenance, the court said:

“To maintain the action it is sufficient for the complaint and the facts to show an abandonment without cause, and a neglect or refusal on the part of the husband, having ability, to support his wife, or such neglect as amounts to refusal. Kimble v. Kimble, 17 Wash. 75 (49 Pac. 216).”

This excerpt is quoted with approval in Herrett v. Herrett, 60 Wash. 607, 111 Pac. 867. The principle was first announced in Kimble v. Kimble, 17 Wash. 75, 49 Pac. 216, where it was held that a wife who had been abandoned by her husband without cause could maintain an action in equity for separate maintenance independently of an action for divorce. Under these authorities it was necessary for the appellant in the first suit to show, (a) that her husband had abandoned her without cause, or that she was compelled to live apart from him because of conduct upon his part which in law constituted an abandonment; and (b) that having the ability to support her, he neglected or refused so to do. The judgment roll in the first suit shows that he had the ability to support her, as certain real estate was decreed to be his separate property. It is not claimed that he has supported her since she left her home. The judgment necessarily determined that the respondent husband had not abandoned the appellant, and that she was at fault in living apart from him. Indeed, it was proven at the trial of this case that the court, after the first trial, announced from the bench before the rendition of the judgment, that the clear preponderance of the evidence showed that the appellant left her home without cause. This evidence was objected to and is assigned as error, but we think it was competent.

The whole theory of the doctrine of res judicata is that a question once decided by a court of competent jurisdiction having jurisdiction of the parties is finally decided, until reversed upon appeal or otherwise set aside in some lawful way. Averbuch v. Averbuch, 80 Wash. 257, 141 Pac. 701; Perlus v. Silver, 71 Wash. 338, 128 Pac. 661; Stay v. Stay, 53 Wash. 534, 102 Pac. 420; Bruce v. Foley, 18 Wash. 96, 50 Pac. 935; Harding v. Harding, 198 U. S. 317; Kalisch v. Kalisch, 9 Wis. 482; Hoag v. Hoag, 210 Mass. 94, 96 N. E. 49, 36 L. R. A. (N. S.) 329.

In Perlus v. Silver, we said:

“It is the settled law in this state that in an action between the same parties a judgment therein is res judicata as to all points in issue and also as to all points that might have been raised and adjudicated in such action;”

citing numerous authorities. In Stay v. Stay, the same principle was announced, the court saying:

“She alleges no fact that could not have been alleged in the former case, since every act of cruelty relied upon in this action had occurred prior to the time of that trial and was or might have been litigated.”

. Speaking to the same point in the Averbuch case, we said:

“It is elementary law that in divorce actions as in all others a judgment is final and conclusive upon all questions which were or might have been litigated;”

citing many authorities. It is not material that the form of the action be the same if the merits were tried in the first action. In re Clifford, 37 Wash. 460, 79 Pac. 1001, 107 Am. St. 819.

Schoennauer v. Schoermauer, 77 Wash. 132, 137 Pac. 325, cited by the appellant, does not announce a different rule. In the Harding case, the wife brought suit in the state of Illinois on February 3, 1890, for separate maintenance. The bill charged that the wife, without her fault, in consequence of her husband’s cruel treatment, had been obliged to live apart' from him. The decree recited that the wife, at the time of and since the commencement of the action, had lived separate and apart from her husband without her fault, and allowance was made for her separate maintenance. Subsequently the husband commenced an action against his wife for divorce, in the state of California. He alleged that the wife had wilfully deserted him in the month of February, 1890. The judgment rendered in Illinois was held res judicata. In the Kalisch case, the husband sued for a divorce on the ground that, on the first of September, 1856, his wife wilfully deserted him. She answered that, on the 22d day of September, 1856, she filed her petition for alimony in the court of common pleas of Hamilton county, Ohio, in which she charged that her husband had abandoned her and that she had separated from him in consequence of his ill treatment of her; that upon issue joined and a trial, the court found that the husband had abandoned her without cause and that a separation had taken place in consequence of his ill treatment, and decreed that he should pay her alimony. It was held that the judgment was a bar to the action. In the course of the opinion, the court said:

“It was contended by the counsel for the appellant that the judgment in the Ohio suit ought not to be a bar to this action, because the object of the former and present suit was different. ... In both cases the ground or foundation of the action is the same, namely, desertion on the part of the defending party. In the proceeding for alimony the wife set up that her husband had abandoned her without cause; it was essential for her to sustain this allegation in order for her to obtain alimony.”

The introduction of Emma Loeper as a party defendant, upon the allegation that she is holding property in fraud of the appellant’s rights, does not change the rule. Where the cause of action in the two suits is the same, and the party sought to'be estopped was a party to the former suit, and the case was decided on the merits, the introduction of a new party does not defeat the estoppel. 23 Cyc. 1112, 1113.

The appellant argues that the case at bar does not fall within the general doctrine of res judicata, because (1) an action for separate maintenance is one of equitable cognizance, and (b) the only relief that can be awarded in a suit for separate maintenance is a judgment for a sum certain to be paid at fixed periods of time. Conceding both premises, the conclusion does not follow. An action for separate maintenance is a civil action springing from equitable principles. An action for a divorce is a civil action based upon a statute. While there may be several grounds for either action, there can be but one cause of action, which cannot be split. For illustration, while the statute contains a number of grounds for divorce, a wife conceiving herself entitled to divorce on two or more grounds would not be permitted to pursue them separately, but would be deemed to have waived all grounds not urged in the first action. Umlauf v. Umlauf, 117 Ill. 580, 6 N. E. 455, and Watts v. Watts, 160 Mass. 464, 86 N. E. 479, 89 Am. St. 509, 28 L. R. A. 187, have been cited by the appellant to the point that the former judgment is not res judicata. While they in a measure sustain her contention, they are not in harmony with the views expressed in the Schonborn, Herrett, Stay, Perlus, and Averbuch cases.

The appellant has also cited a line of cases which hold that one who has mistaken his remedy in one action is not estopped to maintain a later action upon a correct theory. We so held in Egbers v. Fischer, 78 Wash. 808, 181 Pac. 1128, where we said:

“In truth what the respondent did in the former action was to pursue a remedy which he did not have, and this does not bar an action upon a proper remedy.”

She has also cited cases which hold that an action prematurely brought does not bar the commencement of a new action when the cause of action has matured. The inappositeness of such cases is too apparent to merit comment.

The judgment is affirmed.

Ckow, C. J., Chadwick, Ellis, and Main, JJ., concur.  