review was a consent decree, we are of opinion that the cases relied upon by the Supreme Court of California, Wadhams v. Gay, 73 Illinois, 417; Farwell v. Great Western Tel. Co., 161 Illinois, 522, are not authoritative upon the proposition that such decree would not in the courts of Illinois have the effect of res judicata. The first of the cases-considered by this court in Gay v. Parpart, 106 U. S. 689 et seq.-dealt merely with the right of a court of equity to refuse to lend its aid to enforce an incomplete and ineffective decree in partition proceedings, because to do so would be inequitable. In the second of the cases it was but decided that a fraudulent decree might be set aside in a court of equity.

The general rule in Illinois undoubtedly is that a consent decree has the same force and effect as a decree in invitum. Knobloch v. Mueller, 123 Illinois, 554; O'Connell v. Chicago Terminal R. R., 184 Illinois, 308, 325. Thus, in Knobloch v. Mueller, the court said (123 Illinois, 565):

"Decrees of courts of chancery, in respect of matters within their jurisdiction, are as binding and conclusive upon the parties and their privies as are judgments at law; and a decree by consent in an amicable suit, has been held to have an additional claim to be considered final. Alleson v. Stark, 9 Adol. & E. 255. Decrees so entered by consent cannot be reversed, set aside, or impeached by bill of review or bill in the nature of a bill of review, except for fraud, unless it be shown that the consent was not, in fact, given, or something was inserted as by consent that was not consented to. 2 Daniell, Ch. Pr. 1576; Webb v. Webb, 3 Swanst. 658; Thompson v. Maxwell, 95 U. S. 391; Armstrong v. Cooper, 11 Illinois, 540; Cronk v. Traubbe, 66 Illinois, 432; Haas v. Chicago Building Society, 80 Illinois, 248; Atkinson v. Mauks, 1 Cow. 693; Winchester v. Winchester, 121 Massachusetts, 127; Alleson v. Stark, 9 Adol. & E. 225; Earl of Hopetoun v. Ramsay, 5 Bell's App. Cas. 69. See also, note to Duchess of Kingston's Case, 2 Smith Lead. Cas. *826 et seq. It is the general doctrine that such a decree is not reversible upon an appeal or writ of

error, or by bill of review for error. Armstrong v. Cooper, 11 Illinois, 540."

And the assertion that the particular matters relied upon in this cause are of such a character as to take this case out of the rule just stated, is conclusively shown to be without merit by the decision of the Appellate Court and the Supreme Court of Illinois, affirming the decree of separation and the finding therein made.

In the argument at bar there is a ground taken which was not referred to in the opinion of the Supreme Court of California, which it is insisted shows that that court was right in its decision, although the reasoning of its opinion may be conceded to have been erroneous. That ground is this. In Illinois it is contended it has been settled that a decree in a suit for separate maintenance is not res judicata in a suit for divorce on the ground of desertion, and vice versa, therefore the Illinois decree should not have been given in California any greater effect. Two cases are relied upon. Wahle v. Wahle, 71 Illinois, 510, and Umlauf v. Umlauf, 117 Illinois, 580. But these cases do not sustain the proposition based on them. In the Wahle case the husband had sued his wife for divorce on the ground of abandonment, and she, in addition to answering, had filed a cross bill charging the husband with cruelty and adultery, and praying for separate maintenance. The principal cause was first heard and decided adversely to the husband. Subsequently the cross bill was heard and a decree of dismissal was rendered. This was alleged to be error, on the ground that the verdict of the jury on the issue of divorce, in favor of the wife, was a judicial determination, establishing the facts alleged in her cross bill, and justifying her in living apart from her husband. But the Supreme Court of Illinois held that as the verdict of the jury in the divorce suit was general, and did not indicate upon what particular finding it was based, the court could not know upon what fact the jury were induced to find as they did, and that in consequence the bill did not necessarily establish that the separation of the

parties was without fault on the part of the wife, since the verdict might have proceeded upon either of the following grounds: 1, that the abandonment was for less than two years; 2, that it was by mutual consent; or, 3, that it was induced by the acts of the husband, whatever might have been the fault of the wife.

In Umlauf v. Umlauf, the wife filed a bill for separate maintenance but failing to establish her right the bill was dismissed. Subsequently the husband filed a bill for divorce, charging willful desertion by the wife from the date of the filing of her bill against him for separate maintenance. Upon the hearing of the divorce case the court admitted in evidence against the objection of the wife the pleadings and the decree against her in the suit for separate maintenance, and also excluded all evidence on her part tending to disprove the charge of desertion. From a judgment granting the divorce the wife appealed. The Supreme Court of Illinois prefaced its consideration of the question with the following statement (p. 584):

"No principle is better settled than that where a question, proper for judicial determination is directly put in issue, and finally determined in a legal proceeding by a court having competent authority and jurisdiction to hear and determine the same, such decision and determination of the question will be deemed final and conclusive upon the parties and their privies in all future litigation between them in which the same question arises, so long as the judgment remains unreversed or is not otherwise set aside."

But the court held that these elementary principles did not apply, because the decree against the wife in the separate maintenance suit was general and might have been entered solely upon the ground that the wife was not without fault, leaving undecided the question whether the husband was in any way at fault, and, therefore, there was not identity, and resulting res judicata.

The inappositeness of these cases to the present one beVOL. CXCVIII-22

comes obvious when it is recalled that in this case there was a decree not against but in favor of the wife in the maintenance suit, which decree necessarily conclusively settled that the separation was for cause and was without fault on the part of the wife, and therefore was not a willful desertion of the husband by the wife, which is the precise issue in the divorce case now here.

In the brief of counsel it is stated that under the law of California, if a wife is living apart from her husband under circumstances which do not constitute desertion, yet such living apart may become desertion if the husband in good faith invites the wife to return and she does not do so. In this connection reference is made to certain requests proffered by the husband for the wife to return, which it is urged caused the separation to become desertion under the California law. But conceding, without deciding, that the California law is as asserted, the proposition of fact upon which the argument rests amounts simply to denying all effect to the Illinois deThis follows, because all the requests to return referred to were made in Illinois before the entry of the final decree in the suit for separate maintenance, were referred to in the answer in that case, and were adversely concluded by the judgment which was rendered. Johnson v. Johnson, 125 Illinois, 510.

cree.

Having thus disposed of all the contentions based upon the assumed consent under the decree for separate maintenance or the asserted limitations to such a decree, based upon the law of Illinois, we are brought to consider the final question which is, Was the decree in favor of the wife for separate maintenance entered in the Illinois case conclusive upon the husband in the courts of California of the issue of willful desertion? That the issue of willful desertion present in the divorce action was identical with the issue of absence without fault presented in the Illinois maintenance suit, is manifest. The separation asserted by the wife in her bill for separate maintenance to have been without her fault was averred to have taken place on February 1, 1890, and such separation

was stated by the husband in his answer to the bill to have been an abandonment and desertion of him. The willful desertion charged in the complaint in this action for divorce was averred to have been committed "on or about the month of February, 1890, and to have been continuous thereafter." And the identity between the two is further demonstrated by the circumstance that the evidence taken in the Illinois case bearing upon the cause for the separation was used upon the trial in this case. The question in each suit, therefore, was whether the one separation and living apart was by reason of the fault of the wife. From the standpoint of a decree in favor of the wife in the suit for separate maintenance the issues raised and determined were absolutely identical.

The controversy before us is, in some respects, like that which was considered in Barber v. Barber, 21 How. 582. There a bill was filed in a Federal court in Wisconsin to enforce judgment for alimony under a decree of separation a mensa et thoro, rendered against a husband in New York. It was shown by the evidence that to avoid the payment of the alimony the husband had left the State of New York, the matrimonial domicil, and taken up his residence in the State of Wisconsin, where he obtained a decree of divorce on the ground of desertion by the wife. Whilst this court refrained from expressing an opinion as to the legality of the Wisconsin decree of divorce obtained under these circumstances, it enforced the New York judgment for alimony, and held it to be binding. And that it was considered that the judgment in New York legalizing the separation precluded the possibility that the same separation could constitute willful desertion of the wife by the husband, plainly appears from the following excerpt from the opinion -italics mine (p. 588):

"It also appears, from the record, that the defendant had made his application to the court in Wisconsin for a divorce a vinculo from Mrs. Barber, without having disclosed to that court any of the circumstances of the divorce case in New York; and that, contrary to the truth, verified by that record, he