Hoh v. Hoh, 84 Wis. 378

Hoh v. Hoh

84 Wis. 378 | Wis. | 1893

Lyon, O. J.

Sec. 2886, E. S., provides that “the relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint.” In the present case there is no answer, and the relief demanded in the complaint in respect to property is for alimony and temporary allowances, and those only.. The portion of the judgment from which this appeal is taken is for a division of the property. A judgment for alimony and one for a division of the estate of the husband are essentially different in character and results. The former is always under the control of the court, and may be changed or modified at any time, while the latter is final. E. S. secs. 2364, 2369.

*380When the defendant read the complaint of his wife he had the right to assume that, if a divorce was granted, the court would not make a division of his estate, but would only grant her alimony out of his estate. lie knew that, if dissatisfied with the amount of alimony awarded her, the court would always be open to him to apply for a revision thereof. If he did not desire to resist a divorce he might well make default and neglect to litigate the question of alimony in the first instance, while, had a division of estate been demanded, he would have litigated such demand. This consideration brings the case within the reason of the statute as stated by Chief Justice Cole in Zwickey v. Haney, 63 Wis. 464. It is there said: “ It often happens that a defendant prefers to let the plaintiff take the judgment he has demanded, and to which he has no valid defense, rather than be to the expense of making an answer or attending upon, the trial. This is true both in respect to actions in equity and to actions at law; and the safe rule is to hold, that it is error to take a judgment for a greater amount or for other relief than that demanded in the complaint, when there is no answer and the judgment goes by default.”

For the reasons above stated the order of the circuit court denying the motion of defendant to vacate the portion of the judgment appealed from, and that portion of the judgment, must be reversed. No costs are allowed the defendant, but he must pay the clerk’s fees in this court.

By the Gourt.— Ordered accordingly.