is notice to a corporation subsequently formed by him, of which he retained the control.

In the absence of a statute requiring the record of a lis pendens, it seems that a purchaser without notice, pending a suit is confined to asserting his rights in the pending cause.7

§ 186. Defense of matter of record or res adjudicata. In general. A plea founded upon matter of record sets up the judgment or decree of a court of record upon the same matter and between the same parties, or those in privity with them, in a cause of which it had jurisdiction.1

Pleas of matter of record are in some of the books distinguished from pleas of matter as of record. This distinction was due to the fact that, in England, the Court of Chancery in its equitable jurisdiction, the Court of Admiralty and ecclesiastical courts were deemed courts not of record, although their decrees had the same effect as the judgments of the courts of record.2

Where there is neither valid service of process, nor voluntary appearance, a judgment in personam is not an estoppel; but a State statute providing that a special appearance for the sole purpose of questioning the jurisdiction is equivalent to a general appearance, will make a judgment thereupon binding when attacked collaterally. So it has been held, will a rule of law, established by the courts of a State, that an appeal from an order denying a motion to set aside the service of a summons is equivalent to a general appearance.5

6 Rickey Land & Cattle Co. v. Miller, 218 U. S. 258, 263, 54 L. ed. 1032, 1038. See Linn & Lane Timber Co. v. U. S., C. C. A., 196 Fed. 593.

7 Rickey Land & Cattle Co. v. Miller, 218 U. S. 258, 263, 54 L. ed. 1032, 1038; citing Whiteside V. Haselton, 110 U. S. 296, 301, 28 L. ed. 152, 154. See Atlas Ry. Supply Co. v. Lake & River Ry. Co., 134 Fed. 503; Barstow v. Becket, 110 Fed. 826. See infra, § 477.

$ 186. 1 Ulpian, liber 42, tit. 20 et leg. 1: "Res judicata dicitur, quae finem controversariarum pronunciatione judicius accipit: quod

vel condemnatione vel absolutione contingit." T. B. Harms, Francis Day & Hunter v. Stern, C. C. A., 229 Fed. 42.

2 Story's Eq. Pl., § 778.

3 Simon v. Southern Ry. Co., C. C. A., 195 Fed. 56; supra, § 164; Grannis v. Ordean, 234 U. S. 385; N. Y. Life Ins. Co. v. Dunlevy, 241 U. S. 518; T. B. Harms, Francis, Day & Hunter v. Stern, 229 Fed.

42.

4 York v. Texas, 137 U. S. 15, 34 L. ed. 604. See supra, § 169.

5 Chinn v. Foster-Milburn Co., 195 Fed. 158, 162.

It has even been held that in the case of a foreign corporation, where the validity of the service has been contested and decided against the defendant, such decision is binding collaterally.

Where property has been attached, a summons left at the last stopping place of a resident who has left the jurisdiction is sufficient notice to him. A statute, authorizing a personal judgment upon service by publication against a former resident who had left the State for good was held to be unconstitutional.8

A judgment which is void as against one party, not merely voidable by him, is void as against the other.9

The judgment of the same court, or of another court of the United States, 10 or of a court of one of the Union,11 with jurisdiction of the subject-matter and of the parties, in which the defendant was duly served or voluntarily appeared, is, with the exceptions hereinafter noted, and in the absence of fraud, conclusive between the parties and their privies as to all matter pleaded and which might have been tried in the case. No judgment or decree rendered after a proceeding not in rem, in which the defendant therein was not served with process within the jurisdiction; 12 or in which the unsuccessful party was denied a hearing; 13 or some such other gross injustice was perpetrated as to render the so-called judicial proceeding not due process of law,-is of any effect.

§ 186a. Res adjudicata by judgments of alien courts. The same rule applies to the judgment of a court of an Indian nation

6 Chinn v. Foster-Milburn Co., 195 Fed. 158, 163. But see Harkness v. Hyde, 98 U. S. 476, 25 L. ed. 237; supra, § 164.

7 Herbert v. Bicknell, 233 U. S. 70, 34 Sup. Ct. 562, 50 L. ed. 854.

8 McDonald v. Mabee, 243 U. S. 91.

9 McDonald v. Mabee, 243 U. S. 91.

10 Johnson Co. v. Wharton, 152 U. S. 252; 38 L. ed. 429.

11 Clay v. Deskins, C. C. A., 63 Fed. 330; Hennessy V. Tacoma Smelting & Refining Co., C. C. A., 129 Fed. 240.

12 Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Life Ins. Co. v. Bangs, 103 U. S. 780, 26 L. ed. 608; St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222; Klenk v. Byrne, 143 Fed. 1008. See Clark v. Roller, 199 U. S. 541, 50 L. ed. 300.

13 Bischoff v. Wethered, 9 Wall. 812, 19 L. ed. 829; Windsor v. MeVeigh, 93 U. S. 274, 23 L. ed. 914; Bradstreet v. Neptune Ins. Co., 3 Sum. 601. See Hilton v. Guyot, 159 U. S. 113, 204, 205, 40 L. ed. 95, 122, 123.

in the Indian Territory and to the judgment of an alien court in a country, such as England and Canada, the laws of which give like effect to a judgment of a court in the United States.

A foreign judgment, under which a person has been compelled to pay money is said to be so far conclusive that the justice of the payment cannot be impeached in another country, and that the defendant cannot be compelled to pay it again. So, it has been held, are foreign judgments discharging obligations between citizens or residents of the foreign country and therein contracted. But it was held by a majority of the Supreme Court: that, otherwise, the judgment in personam of a court in a foreign country where a similar judgment of a court of this country would be considered as only prima facie evidence of the facts therein adjudicated, when one of the parties is an American citizen and the other a citizen of that foreign country; is only prima facie evidence and not conclusive."

A foreign judgment determining the status of persons subject to the jurisdiction, such as a decree confirming a marriage or granting a divorce, is followed unless contrary to the policy of the law of this country.

§ 186b. Res adjudicata by judgment in matrimonial actions. A decree of divorce, obtained upon service by publication, must be respected when it was made by a court of the State of the matrimonial domicile.1 The State in which the parties were married and where they resided after their marriage and the

§ 186a. 1 Standley v. Roberts, 59 Fed. 836.

2 Ritchie v. McMullen, 159 U. S. 235, 40 L. ed. 133; Giae v. Westervelt, 116 Fed. 1017.

3 Hilton v. Guyot, 159 U. S. 113, 168, 40 L. ed. 95, 110, per Gray, J., citing Gold v. Canaham, 2 Swanst. 325; s. c., 1 Cases in Ch. 316; Tarleton v. Tarleton, 4 M. & S. 20; Konitzky v. Meyer, 49 N. Y. 571.

4 Burrows v. Jamereaux or Jamineau, Mosely, 1; s. c., 2 Stra. 733; S. c., 2 Eq. Cas. Abr. 525, pl. 7; s. o., 12 Vin. Abr. 87, pl. 9; s. c., Sel. Cas. in Ch. 69; s. c., 1 Dick. 45; May v. Breed, 7 Cush. (Mass.)

15, 54 Am. Dec. 700; Hilton v. Guyot, 159 U. S. 113, 168, 40 L. ed. 95, 110.

5 Hilton v. Guyot, 159 U. S. 113, 40 L. ed. 95; Kilham v. Wilson, C. C. A., 112 Fed. 565; Eastern Bldg. & L. Ass 'n v. Welling, 116 Fed. 100. But see Cruz v. O'Boyle, 197 Fed. 824.

6 Cheely v. Clayton, 110 U. S. 701, 28 L. ed. 298; Hilton v. Guyot, 159 U. S. 113, 167, 40 L. ed. 95, 109.

§ 186b. 1 Atherton v. Atherton, 181 U. S. 155, 45 L. ed. 794; Thompson v. Thompson, 226 U. S. 551, 57 L. ed. -.

party who brings the suit still resided when the suit was brought is the matrimonial domicile. Notice, by personal service or by publication, must be given to the defendant. The judgment is valid although the order for service by publication was granted upon an affidavit that the defendant was a non-resident, made upon information and belief, when she was in fact a resident of the State; provided that the law of the State permits orders to be granted upon affidavits so made. Irregularities in such affidavit, in the manner of stating material facts, do not invalidate the judgment, provided that the facts are actually stated therein, although the judgment might be voidable because of those defects by a suit brought for that purpose. Otherwise, when no personal service within the jurisdiction is made upon a defendant who is a nonresident, the decree of divorce is invalid unless he appears, or when he instigated the suit. Even in a case of an appearance by defendant when neither party had an actual domicile in the State where the decree was entered, the State of their domicile may refuse to recognize the validity of the divorce when adjudicating the right of inheritance by children of a second marriage. But a wife who has appeared and accepted alimony under such a decree is estopped from denying its validity. Although the New York statute permits service upon the co-respondent in a divorce case or his appearance gratis therein with the right to defend in either case, together with costs if he succeeds in defeating the charges. of adultery; the judgment of divorce is not res adjudicata against him except as to a charge against which he has appeared and defended.11

6

10

A decree for alimony where there is no personal service is binding upon the property seized in the State, including the

husband's bank account tied up by an injunction.12 Where after personal service, there was a decree giving the wife a stated sum in full of alimony and all other demands set forth in her cross-bill, it was held that the wife could not subsequently sue in another State to obtain further alimony from land there situated.13

An entry on the docket of a divorce suit which appeared to be the act of the court and not of the clerk, containing findings of the jurisdictional facts adjudging that the marriage be dissolved and that the plaintiff was entitled to alimony from the defendant; "that he be ordered to pay" plaintiff the monthly sums therein specified; was held to be a judgment for the amount of alimony therein stated and not a direction that judgment therefor be subsequently entered.14

When a decree had been duly entered against a defendant, who had been served, and was afterwards set aside, it was held: that a second decree against him without notice was res adjudicata unless set aside by the court which entered it for irregularity.15 Alimony payable in the future by a foreign judgment of divorce is res adjudicata in another State,16 unless the court which made it reserves the right of modification at any future time.

A

§ 186c. Res adjudicata by decision of Court of Probate. decree of a State court of probate or surrogate's court, irrespective of the residence of the parties, is binding upon property within its jurisdiction.1 An application for probate or administration is not binding upon the court of another State except

12 Pennington v. Fourth National Bank of Cincinnati, Ohio, 243 U. S. 269.

13 Bates v. Bodie, 245 U. S. 520; Pennington v. Fourth Natl. Bank, 243 U. S. 269.

14 Smith v. Smith, C. C. A., 247 Fed. 461.

15 Kalehua v. Clark, C. C. A., 250 Fed. 612.

16 Cotter v. Cotter, C. C. A., 225 Fed. 471.

§ 186c. 1 Macgruder V. Drury, 235 U. S. 106; Northrup v. Browne, C. C. A., 204 Fed. 224. A decree

of distribution amongst the heirs of a decedent, made by a Probate Court of Alaska, was held not to be a conclusive adjudication that a partner ship did not exist between decedent and another, to whom the property belonged, as against a creditor of the alleged partner who sought to recover the property from the distributees, since the Probate Court had no jurisdiction to bring in the proper parties and adjudicate that question. Bartleson v. Feidler, 149 Fed. 299. See Martinez v. Mendez, C. C. A., 256 Fed. 596.