Petition for alimony, filed August 20,1880. Facts found by a referee. July 28,1875, the parties agreed that the plaintiff should have $900 as her share of the property, and on that day the defendant gave to one Moore, as trustee, his five promissory notes,— one for $100, payable September 30, 1875, and four of $200 each, payable September 30, 1876, 1877, 1878, and 1879, — with a mortgage of his farm to secure them.
Key passage — most relied on by later courts
“‘‘There is no question as to the power to grant alimony in this case. Upon proper application and notice, the court may revise and modify any order made, and make such new orders as may be necessary respecting alimony. . . . Adultery committed by the plaintiff before or after the decree of divorce is not, as matter of law, a bar to this petition. The plaintiff may have earned the property, and justice may require a division of it, although both parties are corrupt. Whether the plaintiff is entitled to alimony is a question of fact.””
Good law ✅— No negative treatment on recordhow we know
Decided 1885-06-05
How this case has been cited
Cited by 18 later decisions — most recently December 1981
1 federal appellate · 17 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
Cross
v.
Cross,
58 N. H. 373, was a writ of entry, and the matter in issue was the title to the demanded premises,
*446
which depended upon the validity of the plaintiff’s notes and mortgage. Upon an agreed statement of facts, that the notes and mortgage were made in pursuance of a collusive agreement for obtaining a divorce, it was held that the notes and mortgage were illegal and void, and the defendant had judgment.
¶2
This proceeding is a petition for alimony, and the matter in issue is, whether the plaintiff is entitled to a share of the property. The cause of action and the matter in controversy are not the same as in the former action, and the former, judgment is neither a bar to the plaintiff’s right of recovery in this proceeding, rior is it conclusive that the divorce was obtained by collusion. A former judgment is conclusive only as to facts in issue. It is not conclusive as1 to facts which are merely evidence.
Metcalf
v.
Gilmore,
ante, 174, 187;
King
v. Chase, 15 N. H. 9. The referee now finds that the assumed statement of facts in the former trial was erroneous, and that there was, in fact, no collusion between the parties in obtaining the divorce, and the evidence was properly received.
¶3
There is no question as to the power to grant alimony in this case. Upon proper application and notice, the court may revise and modify any order made, and make such new orders as may be necessary respecting alimony. G. L.,
c.
182, s. 15 ;
Ela
v.
Ela, ante
116, 121, and cases cited. Adultery committed by the' plaintiff before or after the- decree of divorce is not, as matter of law, a bar to this petition. The plaintiff may have earned the property, and justice may require a division of it, although both parties are corrupt. Whether the plaintiff is entitled to alimony is a question of fact.
