Coad v. Coad, 41 Wis. 23

Coad v. Coad

41 Wis. 23 | Wis. | 1876

Cole, 3".

1. The attorneys of tbe defendant moved “ to set *26aside tbe findings of fact, conclusions of law and the judgment rendered in ” the action; which motion was based upon the pleadings, papers on file and records in the cause. Ilnder the decisions of this court, this was a general appearance in the cause, and waived all defects in the service of process. It is true, the attorneys attempted to limit the effect of their appearance by stating that it was “ for the purposes of said motion only;” but still it must be regarded as a general appearance. For the rule is, that when a party seeks to take advantage of a want of jurisdiction, he must object on that ground alone, and keep out of court for every other purpose. In Blackburn v. Sweet, 38 Wis., 578, the principle to be extracted from the decisions of this court is stated to be this: “ That a motion to set aside a judgment which is founded partly on the failure of the court to obtain jurisdiction of the moving defendant, and partly upon grounds of mere irregularities in the rendition of the judgment consistent with the fact of jurisdiction, and which imply its existence, amounts to a general appearance. That is, where the moving party asks some relief which can only be granted upon the hypothesis that the court has jurisdiction of the cause and of the person, this is a submission to the jurisdiction, and waives all defects in the service of process.” p. 580. (See also Fairfield v. The Madison Manuf’g Co., 38 Wis., 346; Gray v. Gates, 37 id., (514; Anderson v. White, 32 id., 308; Likens v. McCormick, 39 id., 314; Low v. Stringham, 14 id., 222, and cases referred to in the notes.) In moving to set aside the findings of fact and the conclusions of law, the defendant obviously assumes that the court has jurisdiction to correct errors and irregularities in the rendition of the judgment. This is plain. Having-submitted to the jurisdiction to obtain that relief, it amounted to a waiver of all defects in the service of process.

2. The defendant further insists that the findings of fact are unsupported by the evidence. The circuit court found, in substance, that all the material allegations of the complaint *27were time, and that the defendant had willfully neglected to provide the common necessaries 'of life for the plaintiff, having adequate means and being of sufficient ability so to do; and, upon that ground, granted the divorce. We have examined the evidence taken before the referee, and think it shows that the defendant willfully neglected to maintain and support his wife according to his ability. We shall not discuss the testimony, but content ourselves with stating our conclusion that it is sufficient to sustain the judgment of divorce.

3. There was a reference to take testimony, the referee reporting the same to the circuit court of Iowa county, where the action was pending. The judgment, however, was signed in La Fayette county. It is objected that the circuit court had no power or authority to sign a final jiidgment of divorce in any other county than the one in which the action was pending. This objection cannot prevail. Ch. 38, Laws of 1872, authorizes the circuit court, in all civil actions in which an issue of law or fact has not been joined within the time allowed by law, to hear the testimony and proofs offered i/n such actions, and to sign judgment therein, at any special or general term of court of the circuit. This provision clearly gave the circuit court of La Fayette county authority to examine the testimony reported by the referee in the action, and to sign the judgment. See London v. Burke, 33 Wis., 462.

4. The circuit court adjudged to the wife in fee simple the homestead, worth about $500, together with the household furniture. It is claimed that this was an unreasonable allowance, considering the defendant’s estate or faculties to support his wife. The evidence in regard to the amount of property owned by the defendant is not sufficiently clear and satisfactory, as it stands in the record, to enable us to determine what should be awarded the plaintiff for alimony. It is possible the amount allowed her was excessive, and it so appears to be on the proof before us. But this whole matter of ali*28mony is under tbe plenary control of tbe circuit court, wbicb can revise and alter its judgment in that regard as may be deemed just, upon application being made tberefor. Sec. 28, ch. 111, R. S.; Campbell v. Campbell, 37 Wis., 206; Hopkins v. Hopkins, 40 id., 462. Tbe court did not attempt to make a division or distribution of tbe husband’s estate, as is sometimes done under tbe statute, but adjudged to tbe wife tbe homestead and household furniture as and for alimony proper. It was competent for tbe court to do this; but still tbe matter would be within its control. If any injustice has been done tbe defendant in tbe amount of alimony allowed tbe plaintiff, be can apply to tbe circuit court for relief.

By the Cowt. — Tbe judgment of tbe circuit court is affirmed.