172 Wis. 59 | Wis. | 1920
It is contended that the order sought to be reviewed is not an appealable order. The order grants a new trial of the action and hence is an order appealable to this court under the provisions of sub. (3), sec. 3069, Stats.
The claim is made that the trial court erred in awarding a new trial. . Sec. 2374, Stats., provides:
“1. When a judgment of divorce from the bonds of matrimony is granted so far as it affects the status of the parties it shall not be effective until the expiration of one year from the date of the entry of such judgment; . . .
“2. So far as said judgment affects the status of the parties the court shall have, power to vacate or modify the same for sufficient cause shown, upon its own motion, or upon the application of either party to the action, at any time within one year from the entry of such judgment, provided both parties are then living. ... If the judgment shall be vacated it shall restore the parties to the marital relation that existed before the entry of such judgment.”
It is declared in White v. White, 167 Wis. 615, 168 N. W. 704, respecting these statutory provisions:
“It is evidently the declared purpose and policy of these*61 statutes that until such year has passed the court still has absolute control, and up to the last moment, over the question whether the party seeking a divorce is entitled thereto.”
This broad power of the court is to be liberally exercised in the administration of the laws of divorce. The grounds shown for vacating the judgment in this case are substantial and meritorious. The fact that defendant was mentally incompetent when the action was originally tried and is now mentally restored so that she is enabled to appear and testify, is a very persuasive ground justifying the trial court in reopening the case within the year and giving her a hearing. It is considered that the order vacating the judgment and directing a retrial of the issues is well founded and cannot be disturbed.
By the Court. — The order appealed from is affirmed.