A decree of a court of another state in divorce suit in which both parties appeared, settling defendant's equitable rights to lands in Oklahoma, was as to that matter void, and not res adjudicata.55 An order for alimony, payable in installments, made in a divorce action in another state, subject under the laws of such state to a modification, will not support an action as on a judgment in that state as the same is not a final order for a fixed sum.56

Where the grounds for alimony have been decided in an action for divorce, they cannot thereafter be the basis of an action for alimony.57

rendered upon service by publication in any state in conformity with the law thereof shall be given full faith and credit in Kansas, and shall have the same force with regard to persons now, or heretofore, residents or hereafter to become residents of the state as if it had been rendered by a court of Kansas, foreign divorce decrees legally based on publication service must be recognized and enforced the same as judgments of the courts of Kansas with respect to all persons. McCormick v. McCormick, 107 P. 546, 82 Kan. 31. Where decree in a Kentucky divorce suit to the extent of dissolving a marriage was conceded to be valid, the Supreme Court of Oklahoma, under the full faith and credit clause of the federal Constitution, may properly give force to it only as determinative of their marital status. Spradling v. Spradling (Okl.) 181 P. 148.

55 Sharp v. Sharp (Okl.) 166 P. 175, L. R. A. 1917F, 562.

56 Bleuer v. Bleuer, 110 P. 736, 27 Okl. 25.

On a decree for divorce, a Missouri court required defendant to keep his life insured for $1,000 for the benefit of his divorced wife. In an action on the judgment, plaintiff averred that defendant had permitted the policy to lapse, and judgment was allowed against him for $1,000. Held error. In an action on a foreign judgment for alimony payable in installments, it was error to render judgment for installments not due at the beginning of the action, but which fell due during its pendency. Decrees of Missouri courts for future payments of alimony are not subject to modification by those courts as to past-due installments so as to deprive such decrees of the full faith and credit clause of the federal Constitution. Campbell v. Campbell, 115 P. 1111, 28 Okl. 838.

57 A wife sued for alimony in the district court of a county in Kansas, under the statute authorizing the maintenance of such an action for any of the causes for which a divorce may be granted. Subsequently the husband brought an action against the wife for a divorce in the county of his residence in the territory of Oklahoma. In this action the wife personally appeared and filed her cross-petition, asking for a divorce and alimony, setting up as grounds therefor the same causes which she charged in her petition for alimony. The divorce action was tried before the action for alimony, and on such trial the court found the husband to be without fault, and granted him a divorce on the allegations of his petition. Held, that the wife could not thereafter maintain her action for alimony, since the truth of her causes

While the action of a court of another state in modifying a decree. in a divorce suit after death of the wife so as to give the father the custody of his child was not conclusive, in habeas corpus in the state to obtain its custody on the question of his fitness, it was competent evidence thereof.58

Where, on the death of the plaintiff in an action on a foreign judgment, the action is properly revived in the name of the personal representative, a recovery will not be prevented by a failure to revive the foreign judgment.59

§ 1486. Filing judgment in district court-Forms

"In all cases in which a judgment shall be rendered by a county court or justice of the peace, the party in whose favor the judgment shall be rendered may file an abstract or transcript of such judgment in the office of the clerk of the district court of the county in which the judgment was rendered; and thereupon the clerk shall, on the day on which the same shall be filed, enter the case on the appearance docket, together with the amount of the judgment and time of filing the abstract or transcript; and shall also enter the same on the judgment docket, as in case of a judgment rendered in the court of which he is clerk."60

therefor had been decided against her by the Oklahoma court, and the decree was res judicata. Phillips v. Phillips, 76 P. 842, 69 Kan. 324.

58 Pinney v. Sulzen, 137 P. 987, 91 Kan. 407, Ann. Cas. 1915C, 649. 59 McLain v. Parker, 129 P. 1140, 88 Kan. 717, judgment affirmed on re hearing 131 P. 153, 88 Kan. 873.

60 Rev. Laws 1910, § 5217.

Where plaintiff, after recovering judgment in the probate court of L. county filed a transcript thereof in the office of the district clerk of O. county, he was entitled to all the benefits of the Code of Civil Procedure which he would have had on a judgment rendered in the district court of O. county,

I hereby certify that the foregoing is a full and correct abstract of a judgment rendered by me in the suit above entitled.

§ 1487. Certificate of amount paid

Justice of the Peace.

"The county judge or justice of the peace shall certify on the abstract or transcript the amount, if any, paid on such judgment.” 61

§ 1488. Revivor

"If such judgment becomes dormant, or if any of the parties thereto die before the same is satisfied, it may be revived in the same manner as other judgments in the district court; and a certified copy of the entry of such abstract or transcript may be filed in the office of the clerk of the district court of any other county, and shall be a lien on the real estate of the debtor in such county, from the date of the filing of such copy; and execution may issue thereon from said court, in the same manner as if said judgment had been originally rendered therein." 62

including the right of execution together with the procedure under Code Civ. Proc. art. 25, tit. "Executions" (St. 1890, p. 861). St. 1893, pp. 1190, 1191, "regulating liens of judgments rendered in probate court," approved March 7, 1893, do not limit the jurisdiction of the probate court, or the right to have execution on a transcript of judgment filed in the clerk's office of the district court of any county in the territory from a judgment of any probate court in the territory. Lowenstein v. Young, 57 P. 164, 8 Okl. 216.

61 Rev. Laws 1910, § 5220.

62 Rev. Laws 1910, § 5221.

For forms in action to revive judgment, see ante, § 1340.

The inherent power to grant a new trial at the same term for prejudicial error will not be deemed taken away by statute unless the intent to do so is clear.1

1490. Discretion

Whether a new trial shall be granted or refused rests largely within the sound discretion of the trial court. By "discretion of the court" is meant a legal discretion, to be exercised in discerning the course prescribed by law according to principles ascertained by adjudged cases. This discretion is not an arbitrary one. A new

1 Todd v. Orr, 44 Okl. 459, 145 P. 393.

2 O'Neil Engineering Co. v. City of Lehigh, 75 Okl. 227, 182 P. 659; Crouch v. Crouch, 59 Okl. 181, 158 P. 573; St. Paul Fire & Marine Ins. Co. v. Peck, 59 Okl. 195, 158 P. 595; Missouri, K. & T. Ry. Co. v. James, 61 Okl. 1, 159 P. 1109; Sipes v. Dickinson, 136 P. 761, 39 Okl. 740; Crowder State Bank v. American Powder Mills, 46 Okl. 105, 148 P. 698.

8 Vickers v. Philip Carey Co., 49 Okl. 231, 151 P. 1023, L. R. A. 1916C, 1155. 4 The discretion committed to a trial court to set aside a verdict and grant a new trial is not an arbitrary one, and does not exist unless authorized by law or established precedent. Sovereign Camp, Woodmen of the World, v. Thiebaud, 69 P. 348, 65 Kan. 332,

trial should be granted to effect substantial justice, but not otherwise."

The trial court is not compelled to grant a new trial, though the parties unite in asking for it, but in its discretion may deny the motion."

“A new trial shall not be granted on account of the smallness of the damages, in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained." 8

A new trial should be granted whenever, in the opinion of such court, the party asking for it has not probably had a reasonably fair trial and has not probably obtained substantial justice. Trower v. Roberts, 89 P. 1113, 17 Okl. 641.

Where the district court might have been satisfied that plaintiff did not have a reasonable opportunity to present his case, where some improper evidence was admitted, and where court might have believed jury should not have accredited some evidence, its grant of new trial was not an abuse of its discretion. Decker v. Bailey, 171 P. 636, 102 Kan. 538.

Where, in a contest over the probate of a will on the ground that the testator was of unsound mind at the time of making it, the evidence is in substantial conflict as to such issue, the trial court did not abuse its discretion in granting a new trial from a judgment refusing the probate. In re Smith's Estate, 33 P. 744, 98 Cal. 636.

On an issue as to the due execution and subscribing of a will, one of the subscribing witnesses testified that he and the other witness signed after testator. The other witness testified that the name of the first witness was not on the will when he signed it; that he did not think testator's name was on; that he first commenced to entertain the belief in November, 1900. The will was dated June 1, 1897. Witness admitted that he told a third party in August, 1900, that he thought the other names were on the will when he signed, etc. The jury found that the will was not duly executed. Held not an abuse of discretion to grant a new trial. In re Motz's Estate, 69 P. 294, 136 Cai. 558.

In a will contest contestants claimed that a contract conveying all their interest in the estate to proponents was induced by fraud. The court found that the contract was executed for a fair consideration, which contestants had not offered to return, and that contestants were estopped. A new trial was granted on the ground that under a recent decision the court was of opinion that the failure to return the consideration was immaterial, and that the evidence, which was conflicting, was insufficient to justify the finding that there was no fraud. Held, that the granting of a new trial was not an erroneous exercise of discretion. In re Wickersham's state, 70 P. 1076, 138 Cal. 355, rehearing denied 71 P. 437, 138 Cal. 355.

A trial judge should set aside a verdict unless he is satisfied that substantial justice has been done. Linderman v. Nolan, 83 P. 796, 16 Okl. 352. Gunn v. Durkee, 21 P. 156, 41 Kan. 144.

8 Rev. Laws 1910, § 5034.