Dibble v. Dibble

1 N.W.2d 159 | Wis. | 1941

Action for divorce from the bonds of matrimony commenced by plaintiff-appellant on June 7, 1941. The grounds alleged are cruel and inhuman treatment. In addition to the general allegations in such action and in compliance with sec. 247.14, Stats., it is further alleged:

"That since said marriage several divorce actions have been started in Shawano county but in every instance the parties have reconciled and resumed living together. None of such actions were ever filed in the office of the clerk of court."

The defendant demurred on the ground that it appears upon the face of the complaint that there is another cause of action pending between the same parties for the same cause. From an order entered on June 20, 1941, sustaining the demurrer, and from a judgment entered on same date dismissing the action, plaintiff appeals. The complaint states a cause of action. Sec. 247.14, Stats., so far as here material, provides:

"In addition to all other allegations, the complaint shall specifically allege whether or not an action for obtaining a divorce by either of the parties was or has been at any time commenced or pending in any other court, or before any judge thereof, in this state, or elsewhere."

It is alleged that several divorce actions have been commenced in Shawano county; that in each instance the parties have become reconciled and resumed living together; that none of such actions were ever filed in the office of the clerk of court. The defendant demurred on the ground "that it appears upon the face of the complaint that there is another cause of action pending between the same parties for the same cause." It does not appear from the complaint when these former actions were commenced, by which spouse, or the cause of action alleged. Sec. 247.07, Stats., specifically states seven different causes for divorce from the bonds of matrimony. Sec. 247.08 specifically states five separate causes for divorce from bed and board. The cause for divorce alleged in the instant action is cruel and inhuman treatment of the plaintiff by the defendant; if the cause of action alleged in the former actions was any one of the six other causes for divorce specified in sec. 247.07, no other action between the parties would be pending for the same cause.

It follows that the complaint in the instant action does not disclose the pendency of another action between the parties hereto for the same cause. The court below erred in sustaining the defendant's demurrer and in entering judgment dismissing the action.

By the Court. — Order and judgment reversed. Cause remanded for further proceedings according to law.