Voelker v. Voelker

207 Ill. App. 347

• Court: Appellate Court of Illinois
• Decided: October 2, 1917
• Docket: Gen. No. 23,277
• Status: Published

Opinion

Mr. Justice McSurely

delivered the opinion of the court.

„2. Judgment, § 502* — what estoppel by limited to. Estoppel by judgment is limited to questions involved in the issue and not to incidental matter. 3. Judgment, § 502* — when decree of divorce providing for property rights in real- estate does not estop party seeking recovery of personal property. A decree in a divorce suit providing for the conveyance of certain real dstate from the husband to the wife does not create an estoppel by judgment as to personal property, which was not involved in and was not essential to the conclusion reached in the divorce suit, in an action by the wife to replevy such personal property. 4. Judgment, § 688* — who has burden of proving former adjudication. Where a plea of former adjudication is relied upon, the burden of proving such plea is upon the defendant, and it must be shown what was determined by' the former judgment, and such proof must be clear, certain and convincing. 5. Judgment, § 444* — when in former proceeding creates an estoppel. A judgment in a former proceeding is an estoppel only where it appears from the face of the record, or by extrinsic evidence, that the precise matter in controversy in the suit at bar was raised and determined in the proceeding which is urged as an estoppel.