26 Wis. 152 | Wis. | 1870
The following opinion was filed at the January term, 1870.
The statute provides that any person aggrieved by any order, sentence, judgment or denial of a judge of the county court, may appeal therefrom to the circuit court for the same county. R. S. ch. 117, § 24. The question whether the party appealing in any case is a person thus designated by the statute, and to whom the right of appeal is given, is essen
The objection in this case was taken by motion. The appellants here, respondents below, moved to dismiss the appeal, on the ground, among others, that the appellant had no interest in the subject-matter of the appeal. Attending the motion, and referred to in it, were all the affidavits, papers and documents relied upon in support of it. This, we think, was the proper mode of raising the objection and bringing it before the court' for determination. In such case, if any serious or doubtful question of fact arises, an issue may be made up and the verdict of a jury taken, as has been frequently decided by this court. 16 Wis. 303; 15 id. 475; 18 id. 571.
On this motion no such issue was made, and we think none was necessary. This results from the nature of the evidence relied upon in support of the motion. The evidence was an exemplified copy of the record of a divorce suit in the superior court of the city of New York, showing -that the appellant was not, as she alleged, the widow of the deceased, and so was not interested in the subject-matter of the appeal. This was not evidence to be submitted to a
In opposition to the motion, two affidavits were read by counsel for the appellant, which, together with some objections urged by them against the record in the divorce suit, it becomes necessary to consider. The affidavits were read for the purpose of showing that the superior court of the city of New York had no jurisdiction of the subject-matter of the divorce suit; that the judgment therein was procured by fraud against the appellant; and that in another action lately pending in the supreme court of New York, which was for the partition of certain lands, it had been adjudged that the appellant was the wife of the deceased. The' affidavits were made by the counsel themselves, who appeared for the appellant, and were altogether unsatisfactory for the purpose of showing the two first facts claimed. With respect to the jurisdiction of the court in the divorce suit, one of the counsel made oath that it “ was, at the time said action was pending, and still is, a court of limited and not of general jurisdiction; and this appellant claims and alleges that said superior court had not jurisdiction of the subject-matter of said action.” This was testifying that the appellant claimed and alleged that court had no jurisdiction of the subject-matter of the action, but no statement or evidence whatever of the fact, if it was such, as it undoubtedly was not. In the other affidavit, made by counsel residing in the city of New York, and familiar with the jurisdiction and practice of the superior court, and who had, himself, been engaged in' the divorce suit, nothing at all was said of the jurisdiction of the court over the subject-mat
And the charge of fraud was equally unsupported by any evidence or proof of facts. The affidavit reads thus: “ And deponent further says, that it is claimed by said appellant, and she alleges, that said last named judgment was procured and obtained by the fraud and collusion of said James Amory” etc. This, like the other, is a mere statement by the counsel under oath of what his client claims and alleges the fact to be.
The other fact stated in the affidavits, with respect to the judgment in the partition suit, was fully rebutted or shown to be immaterial by what appears from the record in the divorce suit. The judgment in partition was in 1851, and that in the divorce suit in 1860. It appears from the record in the latter case, that the appellant filed her petition, and applied therein, in 1866, to have the decree set aside and. the cause reopened, on account of the fact of marriage claimed to have been established and the estoppel created by. the judgment in partition; and that such application was denied by the court. The petition fully set forth the claim of the appellant, the same now urged, with respect to the partition judgment, and also her excuses for not having produced the same at the trial of the divorce suit. The effect of the order denying that application must be to conclude her from all further agitation of the same question. The order remaining unreversed and not appealed from, she is debarred henceforth from insisting upon the estoppel of the partition judgment, if it ever operated as such, as against the testator and his legal representatives. Eor in making the order, either the court must have found that she was inexcusable in
As to the positions taken by counsel to show that the only judgment which could have been rendered in the divorce suit was one simply dismissing the complaint, and that the judgment which was rendered is conclusive only of the fact that the parties were not married on or about the 12th day of March, 1846, we are clearly of opinion that they are all untenable. A judgment of dismissal, after a hearing upon the merits, is, as we understand it, conclusive upon the complainant as to all facts involved in the issue; and the prayer of the answer, that the complaint might be dismissed, did not preclude the court from adjudicating specially upon every fact set up in the answer as the ground of such relief. The prayer for relief does not go to the jurisdiction of the court. It may grant any relief consistent with the case made, without any prayer, or different from that prayed. Mineral Point R. R. Co. v. Supervisors of Iowa County, 24 Wis. 93. And whether the only fact in issue was as counsel contend, will he best known by allowing the record to speak for itself. The complaint charged a marriage between the plaintiff and defendant “ on or about the 12th day of March, 1846,” and subsequent cohabitation as man and wife. The answer denied the marriage “ on or about the 12th day of March, 1846-, or at any other time,” and the cohabitation as man and wife, and alleged that the defendant was a “ single man, and
We refer to Garwood v. Garwood, 29 Cal. 514, as a case fully in point upon the questions above examined, and as fully sustaining our conclusions with respect to them. See also Veazie Bank v. Young, 53 Maine,
It follows from these views, that the court below should have dismissed the appeal, and that the order must be reversed and cause remanded, with directions that the same be dismissed.
By the Court. — So ordered.
A motion for a rehearing was denied at the June term, 1870.