156 Wis. 408 | Wis. | 1914
Lead Opinion
1. Counsel for appellants contend that tbe court should not have allowed tbe amendment setting up the statutes of limitation, nor tbe amendment setting up tbe answer in abatement as to plaintiff Matilda Prochnow, and argue tbe question under this bead to considerable extent in their brief. We are, however, precluded from considering tbe error assigned under this bead for the reason that tbe first order is not appealable. Sec. 3069, Stats., provides what orders may be carried by appeal- to the supreme court* and tbe order in question does not come within any provision of this statute.
Tbe answer in abatement set up facts to-the effect that tbe plaintiff Matilda Prochnow was not a proper party plaintiff, and upon tbe trial of this issue tbe court -ordered that tbe plea in abatement be sustained, and that tbe complaint, in so far as any cause of action or claim for damages was attempted to be stated therein in favor of 'the plaintiff Matilda Prochnow, -be dismissed, and that she be dismissed from said action as a party thereto, but without- prejudice to tbe right of tbe plaintiff Gustav Prochnow to proceed in tbe action as plaintiff. <■ This latter order is appealable, but tbe appeal from such order does not bring up for review tbe first order referred to. Gross C. Co. v. Milwaukee, 148 Wis. 72, 134 N. W. 139; Gorsegner v. Burnham, 142 Wis. 486, 125 N. W. 914; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 83 N. W. 851; Breed v. Ketchum, 51 Wis. 164, 7 N.
2. The issue on the answer in abatement was tried before the court and a bill of exceptions settled on appeal. The court below found on sufficient evidence that the plaintiff Matilda Prochnow never had any right, title, or interest in the real estate described in the complaint, except such right, title, or interest as she might have by virtue of being wife of the plaintiff Gustav Prochnow, and that said Matilda Prochj now had no separate estate in said real estate described or otherwise, and was in no way affected by the alleged nuisance referred to in the complaint. Upon these facts, supported by the evidence, it is clear that she was not a proper party plaintiff in this action. At common law the wife is not a proper party to an action for damages to her husband’s realty or personal property. Our statute, sec. 2345, does not make her a proper party in this action. It gives her the right to sue in her own name in actions relating to her separate property or business, or to sue for an injury to her person or character, or for the alienation and loss of the affection and society of her husband, and also in other respects mentioned in secs. 2343 and 2344, which do not touch the instant case. The case at bar does not come within any of the statutory provisions permitting a married woman to sue; nor does the fact that the real estate in question is the homestead of the plaintiff Gustav Prochnow confer any right upon the plaintiff Matilda Prochnow to join with her husband in this suit. Mash v. Bloom, 126 Wis. 385, 105 N. W. 831; Town v. Gensch, 101 Wis. 445, 76 N. W. 1096, 77 N. W. 893; Beranek v. Beranek, 113 Wis. 272, 89 N. W. 146. The ease of Hufnagel v. Mount Vernon, 49 Hun, 286, 1 N. Y. Supp. 787, is in point on the proposition under consideration to the effect that a wife is not a proper party plaintiff in an action
The ownership and possession of the real estate being in the plaintiff Gustav Prochnow, the right of action was in him exclusively. Kavanagh v. Barter, supra; Hufnagel v. Mount Vernon, 49 Hun, 286, 1 N. Y. Supp. 787. We think it clear upon principle and authority that the wife was an improper party plaintiff in the present action, therefore the court below was right in sustaining the answer in abatement and dismissing the plaintiff Matilda Prochnow from the case. It is true there is a class of cases where the wife is a proper party where necessary in an action to protect her dower interest, but such cases have no bearing here. Madigan v. Walsh, 22 Wis. 501, holds that an inchoate right of dower is such an interest in land as will enable the wife to maintain an action to remove a cloud fraudulently attempted to be created upon it.
Counsel for appellant refers us to Hausmann Bros. Mfg. Co. v. Kempfert, 93 Wis. 587, 67 N. W. 1136, and Huntzicker v. Crocker, 135 Wis. 38, 115 N. W. 340. In the former ease it was simply held that the wife was a proper, if not a necessary, party in an action to foreclose a mechanic’s lien, even though the premises were not the homestead, and even though her inchoate right of dower could not be divested in such action. In the Huntzicleer Case it was held that an inchoate right of dower is such an incumbrance on land as will entitle, its owner to maintain an action to remove a cloud thereon
It is further contended that $500 or $600 of Matilda Prochnow’s money went into the land in question, hence she has an interest therein. This contention is without merit, even if it be true that she advanced money to her husband which money went into the property. The whole title to the property still remains in Gustav Prochnow, and upon the established facts in this case no trust results in favor of Matilda Prochnow. Friedrich v. Huth, 155 Wis. 196, 144 N. W. 202. It follows that the appeal must be dismissed as to the first order appealed from, and that the second order must be affirmed.
By the Court. — The appeal is dismissed as to the first order, and the second order appealed from is affirmed.
Dissenting Opinion
The following opinions were filed April 11, 1914:
(dissenting). To my mind it is very plain that the court has fallen into error in this case.
The opinion of the court denominates the present action as an action at law to recover damages for, and procure the abatement of, a nuisance which injures the value of real estate owned by the husband alone. If this were the fact I might perhaps have no quarrel with the result reached. As matter of fact, however, the complaint contains all the allegations necessary to set forth an action in equity under the provisions of the latter part of sec. 3180 of the Statutes to enjoin the continuance of a nuisance consisting of noises and noxious smells produced by defendant’s furnaces by night and day, which, as alleged, render the homestead of the parties unfit for habitation and seriously impair the health and comfort of the parties. True, there are also allegations of injury to the
Dissenting Opinion
(dissenting). I unite with the Chief Justice and Justice ViNJE in dissenting in this case. I think the reasoning in the court’s opinion violates the basic principles of our jurisprudence, that “there is no wrong without a remedy.” It violates one of the most vital principles of the Code that “All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs, except as otherwise provided by law.” Sec. 2602, Stats. It violates one of the crowning features of the Code that “In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed, with a view to substantial justice between the parties.” Sec. 2668, Stats.
Why say, in effect, that the subject of the action is the real estáte and Mrs. Prochnow has no interest therein, — the whole is in her husband ? Technically such is the legal title but to all intents and purposes the home is community property. It cannot be sold or incumbered in any way without a conveyance of some sort executed by husband and wife. It is her home just as much as it is his. She has just as much interest in preserving its habitable quality as he. If there is any difference it is in her favor. Therefore the doctrine that only a person interested in the real estate can maintain an action for an injury thereto, it will be seen, has no application in favor of the defendant when the real nature of the action is appreciated.
It rather shocks one’s sense of justice to face a decision that a married woman has no such interest in the realty, which is partly hers for all practical purposes because it is the homestead of herself and husband, which will enable her to prosecute to prevent a violation of her right to enjoy it. True this court at quite an early day held that a married woman’s estate in the home is solely prospective and depends on the disability of the husband to deal with it without her consent, evidenced by her deed. I apprehend that if the court had to deal with the matter unhampered by precedent it would give a far greater dignity to her right. That is well indicated in Town v. Gensch, 101 Wis. 445, 449, 76 N. W. 1096, 77 N. W. 893; but to go to the length of holding that she cannot protect her right of enjoyment against acts detrimental to her right of personal security and immunity from undue annoyances, is
Some justification of the decision is made upon the ground that an action for a nuisance as affecting real estate is an action at law. But has not this court said over and over again and does not the Code declare that there is no distinction in. our system between actions at law and actions in equity, except as to mode of trial ? True an action for damages for a nuisance is an action requiring a jury trial unless the right thereto is waived; but that only applies where the primary relief sought is damages. Such is not the ease now. The primary right here which has been violated is that of enjoyment of the home under normally habitable conditions, and the primary relief sought is prevention of further invasion thereof. The claim for damages is purely incidental.
The whole reasoning of the court seems to be faulty in that it treats the subject of the action as real estate; while the real subject is the security and use of the real estate for a home. The violated, right is as much that of Mrs. Prochnoiu as of her husband.
The foregoing would seem in striking contrast with the decision of the court if the citations of authority there were not examined. When examined it will be seen that some of them do not deal with the question here and others support this dissent. Mash v. Bloom, 126 Wis. 385, 105 N. W. 831, was not an action to protect the homestead right. It was an action against a married woman to vacate a deed under which the homestead was acquired, and it was said that the wife,' though a proper, was not a necessary party, because a judgment against her alone would not be conclusive as to any widow’s right which she might at some time in the future acquire. It is easy to see how variant that is from an action to prevent impairment of the present habitability of a home. Hunt v. McDonald, 124 Wis. 82, 102 N. W. 318, is to the
It seems that the court proceeded from an entirely wrong standpoint in rendering the decision. I cannot think it was not appreciated that the key to the logic in support of the result is that the action is for damages to the realty as the primary thing, while the dotídnant idea, in fact, throughout the complaint was preventive relief and the prayer was in harmony therewith. The court, or the writer of the opinion, must have been misled by decisions under sec. 3180 prior to the amendment of 1882. As that formerly stood the remedy in equity for a nuisance was abolished; but it was restored by the amendment, as its language clearly indicates and as this court has held. Stadler v. Grieben, 61 Wis. 500, 505, 21 N. W. 629. In that case the court decided, according to elementary principles, and the spirit of the statute that an action to abate a wrong injurious to health and comfort is just as legitimate as one injurious to property, saying, in effect, it is well settled that the law gives to every person protection against every substantial injury. Let the injury be tangible, or the discomfort perceptible to the senses of ordinary people . . . and an action accrues, either in law or in equity to remedy the wrong. That has been repeatedly approved in actions such as this, all being treated as equitable interferences. McCann v. Strang, 97 Wis. 551, 72 N. W. 1117; Middlestadt v. Waupaca S. & P. Co. 93 Wis. 1, 66 N. W.
I apprehend that this court will not be content to long rest under the imputation of having put injuries to mere property above injuries to health and comfort, particularly the health and comfort of married women and their families. There is no such infirmity in the law. The present result is an infirmity in administration, not in the law. No court has more significantly than ours vindicated the maxim “There is no wrong without a remedy.” Can it be consistent with that to hold that a married woman suffers no remediable wrong by her home being rendered uninhabitable and her health and comfort jeopardized because, forsooth, she has no legal title to the property ?
The very reference I have made to the sources of the court’s logic, I think, plainly exhibits and refutes the error of it. We may freely concede that a person who has no present interest of a strictly legal nature in realty cannot maintain an action for damages to the property by the maintenance of a nuisance as was held in Kavanagh v. Barber, 131 N. Y. 211, 30 N. E. 235, and is laid down as elementary in 2 Wood on Nuisances (3d ed.) § 832a. We may also concede that courts, at times, have confused that with the question of whether an action will lie for equitable relief against a nuisance, and that is particularly true where the old remedy for relief in equity has been abolished. But it is all a matter of administration. This court has not, before, lapsed into such confusion as is evidenced by the cases cited, particularly McCann v. Strang. Courts of equity are not bound by precedents. Where there has been a tendency to administer the law in equity, as if the court were in a straight-jacket, so to speak, wrought out for it by precedents, the modern effort
