De Longe v. Fischback

153 Wis. 193 | Wis. | 1913

Vinje, J.

Defendant’s counsel announced upon tbe oral argument that he did not rely upon the second ground of demurrer, so it remains only to consider and determine whether or not the complaint states facts sufficient to constitute a cause of action.

Counsel argues that upon a proper construction of the action of the superior court of Cook county, as shown by its proceedings as a whole, the decree or order of 1911 does not constitute a final judgment for. money; that while the decree declares that a certain sum is due from the defendant to the plaintiff for arrears for alimony, yet the whole trend and tenor of the court’s action shows that it had the single object in view of determining whether the defendant was in contempt under the original divorce judgment of 1891, and, if he was so in contempt, to give him an opportunity to purge himself therefrom by the payment of whatever sum or sums the court still found due under the judgment, and that it was not the court’s intention to render a new and independent money judgment against the defendant. The proceeding in 1911, it is claimed, was simply and purely for contempt under the judgment and decree of 1891, as was shown by the order to show cause and by the fact that at the conclusion of the proceeding an order and not a judgment was entered.

In view of the allegations of the complaint hereinafter referred to as to the force and effect given to the order or decree of 1911 by the courts of Illinois, the argument of defendant’s counsel is without force. If' the decree of December 15, 1911, is a final judgment which is not subject to change or modification by the court that entered it, then an action thereon may be maintained in the courts of this state. Kunze v. Kunze, 94 Wis. 54, 68 N. W. 391; Dow v. Blake, 148 Ill. 76, 35 N. E. 761; Page v. Page, 189 Mass. 85, 75 N. E. 92; Wells v. Wells, 209 Mass. 282, 95 N. E. 845; Lynde v. Lynde, 181 U. S. 183, 21 Sup. Ct. 555; Sistare v. Sistare, 218 U. S. 1, 30 Sup. Ct. 682. See note to same in 28 L. R. A. n. s. 1068. That it is such. a final decree in fact, seems quite well established by the above authorities, but in view of the allegations of the complaint it is not necessary to decide the question. The allegations of the complaint as to the effect given the decree of 1911 by the courts of Illinois are identical with the allegations of the complaint in Kunze v. Kunze, supra, and are, in substance, that such decree under the laws of Illinois has the force and effect of a judgment at law for the payment of money, and it was there held that if such a decree for the payment of alimony has the force and effect under the laws of Illinois of a judgment at law for the payment of money, an action at law for its recovery may be maintained in this state. The demurrer admits the allegations of the complaint as to the effect of the decree in Illinois, and the case is ruled by the decision in Kunze v. Kunze, supra.

By the Court. — Order affirmed.