71 Wis. 513 | Wis. | 1888
The learned counsel for the plaintiff is undoubtedly correct in claiming that the judgment on the former appeal was reversed on the sole ground that the widow’s dower had been adjudged subject to the $1,500 mortgage as well as the $2,500 mortgage, when it should only have been subject to the latter mortgage. That appeal was by the widow alone, and, although in form from the whole judgment, yet in substance only from that part of the judgment against her. Her counsel merely asked for a modification of the judgment. As indicated, the decision on that appeal only related to her rights under the statutes. Technically, the mandate of the court should in form have
1. Error is now assigned because such costs are omitted from what is termed “an entirely new judgment,” and which may fairly be regarded as such in form. But such new judgment recites the first trial, the making and filing of the findings of fact and conclusions of law, the judgment entered thereon, the appeal by the widow, the reversal, and the mandate thereon, and then orders and adjudges as indicated. This is a case in equity; and, in harmony with the old practice in such cases, it would have been competent to add to the original judgment or decree; and, as that part of the original judgment between the plaintiff and the-estate remained unreversed, it would seem that nothing was left to the trial court but to modify the judgment as indicated. True, such new judgment does not in form purport to be such further or additional judgment, as it should have done, yet, in view of the status of the record, we think it must in substance be so regarded. Thus regarding it, the judgment of the plaintiff against the estate for costs remains as before.
2. Error is assigned because the court adjudged that the widow was entitled to recover, by reason of her dower, as damages for withholding her share of the rents and profits from August 18, 1882, to the entry of the final judgment, ■September 21, 1886, the sum of $269.92. On the trial it was found, and in the original judgment it was adjudged, that the annual rental value of the premises was $560, and
3. This brings us to the question whether it was error to adjudge the widow entitled to have her dower admeasured to her in this action by way of a money recovery, and to fix the amount thereof, in addition to the damages named, at $828.85. The amount cannot be claimed to be objectionable if there was any authority to so fix it. The subject of such authority has elicited much discussion and a contrariety of opinion in the past. We have no disposition to renew the old discussion. It is said by Mr. Story that, “ as dower is a strictly legal right, it might seem at first view that the proper remedy belonged to courts of common law. . . . But the result of the various decisions upon this subject is that courts of equity will now entertain a general concurrent jurisdiction with courts of law in the assignment of dower in all cases.” 1 Story’s Eq. Jur. § 624; Pom. Eq. Jur. §§ 185, 1382. This is especially true where, as in this state, the two jurisdictions are combined in the same court, and the statutes expressly authorize a plaintiff to “ unite in the same complaint several causes of action, whether they be such as were formerly denominated legal or equitable, or both” (sec. 2641, E. S.), and to counterclaim a similar cause' of action (secs. 2655, 2656). This seems to be the view of courts in other states having similar statutes. Van Name v. Van Name, 23 How. Pr. 247; Brown v. Brown, 31 How. Pr. 481; Townsend v. Townsend, 2 Sandf. 711; Starry v. Starry, 21 Iowa, 254; Thomas v. Thomas, 35 N. W. Rep. (Iowa), 693. The extent of such jurisdiction, and
The facts in the record present a- case peculiarly justifying a broad exercise of equitable jurisdiction. The premises consist of an undivided one-half of a building or block. Manifest^, there can be no actual partition, or setting off a portion of the premises for the use of the widow. - The only way of making a partition, therefore, would be by a forced sale of the premises and an equitable distribution of the proceeds. The husband did not die seized of the land. Neither the mortgage nor the deed was given by him to the plaintiff during coverture. Both were made before marriage. The widow’s right of dower was not a right apparent at law upon the death of the husband. It was only established by an adjudication upon evidence aliunde
4. In equitable actions, costs may be allowed or not to any party, in the discretion of the court- and, when such discretion has. not been abused by the trial court, its judgment as to costs will not be disturbed. Portz v. Schantz, 70 Wis. 497. We cannot say there was any abuse in allowing costs to the widow. On the contrary, we think it was eminently just.
By the Court.— The judgment of the circuit court is affirmed. >